JD Lawrence Perkins v. State ( 2020 )

Opinion filed January 16, 2020
In The
Eleventh Court of Appeals
___________
No. 11-19-00215-CR
___________
JD LAWRENCE PERKINS, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 70th District Court
Ector County, Texas
Trial Court Cause No. A-18-1663-CR
MEMORANDUM OPINION
Appellant, JD Lawrence Perkins, originally pleaded guilty to the third-degree
felony offense of possession of a controlled substance. Pursuant to the terms of the
plea agreement, the trial court deferred a finding of guilt, placed Appellant on
community supervision for four years, and imposed a fine of $500. The State
subsequently filed a motion to adjudicate Appellant’s guilt. At a hearing on that
motion, Appellant pleaded true to the State’s allegations. The trial court found those
allegations to be true, revoked Appellant’s community supervision, adjudicated
Appellant guilty of the charged offense, and assessed Appellant’s punishment at
confinement for six years. We modify and affirm.
Appellant’s court-appointed counsel has filed a motion to withdraw. The
motion is supported by a brief in which counsel professionally and conscientiously
examines the record and applicable law and states that he has concluded that this
appeal is frivolous and without merit. Counsel has provided Appellant with a copy
of the brief, a copy of the motion to withdraw, an explanatory letter, and a copy of
the clerk’s record and the reporter’s record. Counsel advised Appellant of his right
to review the record and file a response to counsel’s brief. Counsel also advised
Appellant of his right to file a pro se petition for discretionary review in order to
seek review by the Texas Court of Criminal Appeals. See TEX. R. APP. P. 68. Court-
appointed counsel has complied with the requirements of Anders v. California, 386
U.S. 738 (1967); Kelly v. State, 436 S.W.3d 313 (Tex. Crim. App. 2014); In re
Schulman, 252 S.W.3d 403 (Tex. Crim. App. 2008); and Stafford v. State, 813
S.W.2d 503 (Tex. Crim. App. 1991).
Appellant has not filed a response to counsel’s Anders brief. Following the
procedures outlined in Anders and Schulman, we have independently reviewed the
record, and we agree that the appeal is without merit. We note that proof of one
violation of the terms and conditions of community supervision is sufficient to
support revocation. Smith v. State, 286 S.W.3d 333, 342 (Tex. Crim. App. 2009).
In this regard, a plea of true standing alone is sufficient to support a trial court’s
decision to revoke community supervision and proceed with an adjudication of guilt.
See Moses v. State, 590 S.W.2d 469, 470 (Tex. Crim. App. [Panel Op.] 1979).
Furthermore, absent a void judgment, issues relating to an original plea proceeding
may not be raised in a subsequent appeal from the revocation of community
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supervision and adjudication of guilt. Jordan v. State, 54 S.W.3d 783, 785–86 (Tex.
Crim. App. 2001); Manuel v. State, 994 S.W.2d 658, 661–62 (Tex. Crim. App.
1999). Based upon our review of the record, we agree with counsel that no arguable
grounds for appeal exist. 1
We conclude, however, that the judgment contains nonreversible error. There
is a variation between the oral pronouncement of sentence and the written judgment
of adjudication. The written judgment includes a fine of $500. When the trial court
assessed Appellant’s punishment and orally pronounced the sentence in open court,
the trial court did not mention a fine. The trial court was required to pronounce the
sentence in Appellant’s presence. See TEX. CODE CRIM. PROC. ANN. art. 42.03 (West
2018); Taylor v. State, 131 S.W.3d 497, 500 (Tex. Crim. App. 2004). When there
is a variation between the oral pronouncement of sentence and the written judgment,
the oral pronouncement controls. Coffey v. State, 979 S.W.2d 326, 328–29 (Tex.
Crim. App. 1998); see also Taylor, 131 S.W.3d at 500–02 (explaining the distinction
between regular community supervision, in which sentence is imposed but
suspended when a defendant is placed on community supervision, and deferred-
adjudication community supervision, in which the adjudication of guilt and the
imposition of sentence are deferred). Because the trial court did not mention any
fine when it orally pronounced Appellant’s sentence and because we have the
necessary information for reformation, we modify the trial court’s judgment to delete
the fine. See Taylor, 131 S.W.3d at 502; Cerna v. State, No. 11-14-00363-CR, 2015
WL 3918259, at *2 (Tex. App.—Eastland June 25, 2015, no pet.) (mem. op., not
designated for publication).
1
We note that Appellant has a right to file a petition for discretionary review pursuant to TEX. R.
APP. P. 68.
3
We grant counsel’s motion to withdraw; modify the judgment of the trial court
to delete the $500 fine; and, as modified, affirm the judgment of the trial court.
PER CURIAM
January 16, 2020
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Bailey, C.J.,
Stretcher, J., and Wright, S.C.J.2
Willson, J., not participating.
2
Jim R. Wright, Senior Chief Justice (Retired), Court of Appeals, 11th District of Texas at Eastland,
sitting by assignment.
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