Robert Lloyd Holcomb Jr. v. the State of Texas

In The
Court of Appeals
Ninth District of Texas at Beaumont
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NO. 09-20-00248-CR
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ROBERT LLOYD HOLCOMB JR., Appellant
V.
THE STATE OF TEXAS, Appellee
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On Appeal from the 1A District Court
Tyler County, Texas
Trial Cause No. 13,571
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MEMORANDUM OPINION
A jury found Robert Lloyd Holcomb Jr. guilty of possession with intent to
deliver a controlled substance and also found that Holcomb used or exhibited a
deadly weapon during the commission of the offense. The trial court assessed
Holcomb’s punishment at twenty years of imprisonment and assessed $180 in
restitution. Holcomb’s appellate counsel filed an Anders brief that presents counsel’s
professional evaluation of the record and concludes the appeal is frivolous. See
1
Anders v. California, 386 U.S. 738 (1967); High v. State, 573 S.W.2d 807 (Tex.
Crim. App. 1978).
On August 23, 2021, we granted an extension of time for Holcomb to file a
pro se brief. Holcomb filed a pro se response. The Court of Criminal Appeals has
held that we need not address the merits of issues raised in an Anders brief or pro se
response. Bledsoe v. State, 178 S.W.3d 824, 826-27 (Tex. Crim. App. 2005). Rather,
an appellate court may determine: (1) “that the appeal is wholly frivolous and issue
an opinion explaining that it has reviewed the record and finds no reversible error[;]”
or (2) “that arguable grounds for appeal exist and remand the cause to the trial court
so that new counsel may be appointed to brief the issues.” Id.We have reviewed the appellate record, and we agree with counsel’s
conclusion that no arguable issues support an appeal. See id. Therefore, we find it
unnecessary to order appointment of new counsel to re-brief the appeal. Cf. Stafford
v. State, 813 S.W.2d 503, 511 (Tex. Crim. App. 1991). However, in reviewing the
record, we observed that the judgment includes restitution that was not orally
pronounced by the trial court. See Bray v. State, 179 S.W.3d 725, 726 (Tex. App.—
Fort Worth 2005, no pet.) (holding that an appellate court has the authority to modify
the judgment in an Anders case and to affirm the judgment as modified).
Restitution is punishment, and it must be included in the oral pronouncement.
Ex parte Cavazos, 203 S.W.3d 333, 338 (Tex. Crim. App. 2006); see Taylor v. State,
2
131 S.W.3d 497, 502 (Tex. Crim. App. 2004); Alexander v. State, 301 S.W.3d 361,
364 (Tex. App.—Fort Worth 2009, no pet.). Accordingly, we must modify the
judgment to remove the “$180.00” in restitution and reflect a restitution amount of
“$0.” We affirm the trial court’s judgment as modified.1
AFFIRMED AS MODIFIED.
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W. SCOTT GOLEMON
Chief Justice
Submitted on November 17, 2021
Opinion Delivered December 1, 2021
Do Not Publish
Before Golemon, C.J., Kreger and Horton, JJ.
1
Holcomb may challenge our decision in this case by filing a petition for
discretionary review. See Tex. R. App. P. 68.
3