Opinion
NO. 12-11-00071-CR
04-30-2012
ERNESTINE MCGRUDER LANE, APPELLANT v. THE STATE OF TEXAS, APPELLEE
APPEAL FROM THE 3RD JUDICIAL DISTRICT COURT ANDERSON COUNTY, TEXAS
MEMORANDUM OPINION
PER CURIAM
Ernestine McGruder Lane appeals her conviction for possession of a controlled substance in an amount of less than one gram. Appellant's counsel has filed a brief asserting compliance with Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967) and Gainous v. State, 436 S.W.2d 137 (Tex. Crim. App. 1969). We modify the judgment and affirm as modified.
BACKGROUND
Appellant was indicted for possession of a controlled substance in an amount of less than one gram in 2005. As alleged in the indictment, the offense was classified as a state jail felony. Appellant was placed on deferred adjudication community supervision for five years.
The State filed a motion to adjudicate Appellant's guilt in 2006, alleging that Appellant failed to abide by the terms of her community supervision. The trial court granted the motion, adjudicated Appellant's guilt, found her guilty of the charged offense, and sentenced her to two years of confinement in a state jail facility. However, the trial court suspended Appellant's sentence for a new five year community supervision period, conditioned on serving thirty days of confinement. The trial court also added conditions to her community supervision.
In 2007, the State filed a motion to revoke Appellant's community supervision, although it appears that no action was taken on that motion. The State filed another motion to revoke Appellant's community supervision in 2010, alleging that Appellant failed to abide by the terms of her community supervision in almost all respects. For instance, the application alleged that Appellant admitted using drugs, failed to report to her probation officer from 2007 through 2010, failed to perform any of her community service, and failed to pay any court ordered costs.
At the hearing on the motion, after a consultation with counsel off the record, Appellant pleaded "true" to all the allegations in the motion to revoke her community supervision. She testified that she understood the effect of such a pleading, that she could be sentenced to confinement, that she made the plea of her own free will, and that no one coaxed her into the plea. When asked, she stated that she had no questions or complaints. Subsequently, the trial court granted the State's motion, revoked Appellant's community supervision, and sentenced Appellant to two years of confinement in a state jail facility. This appeal followed.
ANALYSIS PURSUANT TO ANDERS V. CALIFORNIA
Appellant's counsel has filed a brief in compliance with Anders and Gainous. Counsel states that he has diligently reviewed the appellate record and that he is well acquainted with the facts of this case. In compliance with Anders, Gainous, and High v. State, 573 S.W.2d 807 (Tex. Crim. App. 1978), counsel's brief presents a thorough chronological summary of the procedural history of the case and further states that counsel is unable to present any arguable issues for appeal.See Anders, 386 U.S. at 745, 87 S. Ct. at 1400; see also Penson v. Ohio, 488 U.S. 75, 80, 109 S. Ct. 346, 350, 102 L. Ed. 2d 300 (1988). We have considered counsel's brief and have conducted our own independent review of the record. We have found no reversible error. See Bledsoe v. State, 178 S.W.3d 824, 826-27 (Tex. Crim. App. 2005). Restitution
Counsel for Appellant certified that he provided Appellant with a copy of his brief and informed Appellant that she had the right to file her own brief. Appellant was given time to file her own brief, but the time for filing such a brief has expired and we have received no pro se brief.
We note, however, that the record shows that the trial court did not include restitution in its oral pronouncement of Appellant's sentence at trial. Yet the trial court's written judgment includes restitution in the amount of $140.00.
A trial court's pronouncement of sentence is oral, while the judgment, including the sentence assessed, is merely the written declaration and embodiment of that oral pronouncement. See TEX. CODE CRIM. PROC. ANN. art. 42.03, §1(a) (West Supp. 2011) (providing that "sentence shall be pronounced in the defendant's presence"). When the oral pronouncement of sentence and the written judgment vary, the oral pronouncement controls. Taylor v. State, 131 S.W.3d 497, 500 (Tex. Crim. App. 2004); Coffey v. State, 979 S.W.2d 326, 328 (Tex. Crim. App. 1998).
Restitution is punishment. Weir v. State, 278 S.W.3d 364, 366 (Tex. Crim. App. 2009); Ex parte Cavazos, 203 S.W.3d 333, 338 (Tex. Crim. App. 2006) (orig. proceeding). Therefore, it must be included in the oral pronouncement of sentence to be valid. Sauceda v. State, 309 S.W.3d 767, 769 (Tex. App.—Amarillo 2010, pet. ref'd); Alexander v. State, 301 S.W.3d 361, 364 (Tex. App.—Fort Worth 2009, no pet.). Because the trial court did not include restitution in its oral pronouncement of Appellant's sentence, the court could not assess restitution in its written judgment. See Sauceda, 309 S.W.3d at 769; Alexander, 301 S.W.3d at 364. Therefore, the language regarding the payment of restitution should be deleted.
CONCLUSION
As required, Appellant's counsel has moved for leave to withdraw. See In re Schulman, 252 S.W.3d 403, 407 (Tex. Crim. App. 2008) (orig. proceeding); Stafford v. State, 813 S.W.2d 503, 511 (Tex. Crim. App. 1991). We are in agreement with Appellant's counsel that the appeal is wholly frivolous. Accordingly, his motion for leave to withdraw is hereby granted. We modify the trial court's judgment to delete the restitution amount of $140.00, and affirm as modified. See TEX. R. APP. P. 43.2; Bray v. State, 179 S.W.3d 725, 726 (Tex. App.—Fort Worth 2005, no pet.) (en banc) (holding that an appellate court has the authority to reform a judgment in an Anders appeal and to affirm that judgment as reformed).
Counsel has a duty to, within five days of the date of this opinion, send a copy of the opinion and judgment to Appellant and advise her of her right to file a petition for discretionary review. See TEX. R. APP. P. 48.4; In re Schulman, 252 S.W.3d at 411 n.35. Should Appellant wish to seek further review of this case by the Texas Court of Criminal Appeals, she must either retain an attorney to file a petition for discretionary review or she must file a pro se petition for discretionary review. See In re Schulman, 252 S.W.3d at 408 n.22. Any petition for discretionary review must be filed within thirty days from the date of either this opinion or the last timely motion for rehearing that was overruled by this court. See TEX. R. APP. P. 68.2. Any petition for discretionary review must be filed with the clerk of the Texas Court of Criminal Appeals. See TEX. R. APP. P. 68.3(a). Any petition for discretionary review should comply with the requirements of Rule 68.4 of the Texas Rules of Appellate Procedure. See TEX. R. APP. P. 68.4; In re Schulman, 252 S.W.3d at 408 n.22. Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.