Edward Toby Garza v. the State of Texas ( 2024 )

Opinion filed May 9, 2024
In The
Eleventh Court of Appeals
___________
No. 11-23-00020-CR
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EDWARD TOBY GARZA, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 32nd District Court
Mitchell County, Texas
Trial Court Cause No. 8157
MEMORANDUM OPINION
Appellant, Edward Toby Garza, entered an open plea of guilty to the first-
degree felony offense of continuous sexual abuse of a young child. See TEX. PENAL
CODE ANN. § 21.02(b), (h) (West Supp. 2023). Appellant’s guilty plea was accepted
by the trial court. Following a punishment hearing, the trial court sentenced
Appellant to punishment at confinement in the Institutional Division of the Texas
Department of Criminal Justice for a term of forty-eight years with a fine of $600.
We modify and affirm.
Appellant’s court-appointed counsel has filed in this court a motion to
withdraw. The motion is supported by a brief in which counsel professionally and
conscientiously examines the record and applicable law and concludes 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
both 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 and 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 filed a pro se response to counsel’s Anders brief. In his response,
Appellant acknowledges the impact of his actions but raises no legal issues for our
review.
Following the procedures outlined in Anders and Schulman, we have
independently reviewed the record, and we agree with counsel that no arguable
grounds for appeal exist. 1 We conclude, however, that the written judgment contains
a nonreversible error because there is a variance between the oral pronouncement of
Appellant’s sentence and the trial court’s written judgment. In open court, the trial
court imposed a $500 fine. Contrary to the oral pronouncement, the judgment
reflects a $600 fine, which appears to include the $500 fine pronounced in open court
and the $100 fine required by Article 102.0185 of the Texas Code of Criminal
1
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.
2
Procedure. TEX. CODE CRIM. PROC. ANN. art. 102.0185 (West Supp. 2023). In
addition, the trial court checked the box for “Child Abuse Prevention Fine” and
added $100 to the same line in the section of the judgment entitled, “Fines Imposed
Include (check each fine and enter each amount as pronounced by the court).”
When there is a variation between the oral pronouncement of sentence and the
written judgment, the oral pronouncement controls. Ex parte Madding, 70 S.W.3d
131, 135 (Tex. Crim. App. 2002); see Coffey v. State, 979 S.W.2d 326, 328–29 (Tex.
Crim. App. 1998); Wiedenfeld v. State, 450 S.W.3d 905, 907 (Tex. App.—San
Antonio 2014, no pet.). Because the trial court actually assessed a $500 fine, rather
than a $600 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 $500. See TEX. R. APP. P. 43.2(b); Wiedenfeld, 450 S.W.3d at 907–
08.
We grant counsel’s motion to withdraw. We modify the trial court’s judgment
to reflect a fine of $500, and we delete the “X” and “$100” in the line for “Child
Abuse Prevention Fine.” As modified, we affirm the judgment of the trial court.
W. BRUCE WILLIAMS
JUSTICE
May 9, 2024
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Bailey, C.J.,
Trotter, J., and Williams, J.
3