Dusty Tyrone Madkins v. the State of Texas ( 2023 )

Opinion filed March 16, 2023
In The
Eleventh Court of Appeals
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No. 11-22-00105-CR
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DUSTY TYRONE MADKINS, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 106th District Court
Gaines County, Texas
Trial Court Cause No. 18-4930
MEMORANDUM OPINION
Dusty Tyrone Madkins, Appellant, originally pled guilty to the third-degree
felony offense of possession of a controlled substance, namely methamphetamine.
See TEX. HEALTH & SAFETY CODE ANN. § 481.115(c) (West Supp. 2022). Pursuant
to the terms of the plea agreement between Appellant and the State, the trial court
deferred a finding of guilt and placed Appellant on community supervision for eight
years. The State later filed a motion to adjudicate Appellant’s guilt. As a result, the
trial court adjudicated Appellant’s guilt, assessed his punishment at confinement for
ten years and a fine of $1,000, suspended the imposition of the confinement portion
of the sentence, and placed Appellant on community supervision for ten years. The
State subsequently filed a motion to revoke community supervision. At the
contested hearing on the State’s motion to revoke, Appellant admitted that he had
violated various terms and conditions of his community supervision as alleged in the
State’s motion to revoke. The trial court found the State’s allegations to be true,
revoked Appellant’s community supervision, and imposed the previously suspended
sentence of imprisonment for ten years and the remainder of the $1,000 fine. 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 filed a pro se letter in response to counsel’s Anders brief. In
the letter, Appellant states that he wishes to go forward with the appeal and that he
would like another court-appointed attorney to help him do so. Following the
procedures outlined in Anders and Schulman, we have independently reviewed the
record, and we agree with counsel that the appeal is without merit. We note that
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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); 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 supervision or the 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 written judgment contains a nonreversible
error because of the variance between the oral pronouncement of sentence and the
written judgment. In open court, the trial court imposed the sentence of ten years’
imprisonment and “the remainder” of the previously assessed fine, which was a
$1,000 fine. Contrary to the oral pronouncement, the fine shown on the trial court’s
written judgment revoking Appellant’s community supervision is “$7,200.00
BALANCE.”
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). Because the trial court actually assessed a $1,000
fine, rather than a $7,200 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 show a fine of $1,000 instead of a fine of $7,200.
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We note that Appellant has a right to file a petition for discretionary review pursuant to Rule 68
of the Texas Rules of Appellate Procedure.
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We grant counsel’s motion to withdraw. We modify the trial court’s judgment
revoking community supervision to reflect a fine of “$1,000.00 BALANCE”; as
modified, we affirm the judgment of the trial court.
PER CURIAM
March 16, 2023
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Bailey, C.J.,
Trotter, J., and Williams, J.
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