Opinion
No. 11-17-00279-CR
05-24-2018
GARY WAYNE YOUNG, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 91st District Court Eastland County, Texas
Trial Court Cause No. 21790
MEMORANDUM OPINION
Appellant, Gary Wayne Young, originally pleaded guilty to the third-degree felony offense of indecency with a child by exposure. Pursuant to the terms of the plea agreement, the trial court deferred a finding of guilt and placed Appellant on community supervision for ten years. The State subsequently filed a motion to proceed with an adjudication of Appellant's guilt. At a contested hearing on the motion, the trial court found the State's allegations to be true, adjudicated Appellant's guilt, and assessed his punishment at confinement for ten years. We modify the judgment and dismiss the appeal.
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 there are no arguable grounds to be advanced in this appeal. Counsel has provided Appellant with a copy of the brief, a copy of the motion to withdraw, and a form motion for pro se access to the appellate record. Counsel has also advised Appellant of his right to review the record and file a response to counsel's brief. Appellant has not filed a response to counsel's brief.
This court granted Appellant more than thirty days in which to exercise his right to file a response to counsel's brief.
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); Stafford v. State, 813 S.W.2d 503 (Tex. Crim. App. 1991); High v. State, 573 S.W.2d 807 (Tex. Crim. App. [Panel Op.] 1978); Currie v. State, 516 S.W.2d 684 (Tex. Crim. App. 1974); Gainous v. State, 436 S.W.2d 137 (Tex. Crim. App. 1969); and Eaden v. State, 161 S.W.3d 173 (Tex. App.—Eastland 2005, no pet.). Following the procedures outlined in Anders and Schulman, we have independently reviewed the record, and we agree that the appeal is without merit and should be dismissed. See Schulman, 252 S.W.3d at 409.
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). The record from the adjudication hearing shows that the State presented testimony about various violations by Appellant of the terms and conditions of his community supervision as alleged in the State's motion to adjudicate. Appellant testified at the hearing and admitted to some of the allegations in the State's motion to adjudicate. We note that proof of one violation of the terms and conditions of community supervision is sufficient to support revocation and to proceed with an adjudication of guilt. See id. Based upon our review of the record, we agree with counsel that no arguable grounds for appeal exist.
We note, however, that the judgment contains nonreversible errors. First, there is a variation between the oral pronouncement of sentence and the written judgment of adjudication. The judgment includes a fine of $2,000—under the guise of "Court Costs." When the trial court adjudicated Appellant's guilt, assessed his 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).
Second, the written judgment of adjudication contains an assessment for attorney's fees in the amount of $600. The record reflects that the trial court had found Appellant to be indigent and had appointed counsel to represent him during the adjudication proceedings. A defendant who has been determined to be indigent is presumed to remain indigent, and court-appointed attorney's fees cannot be assessed against such a defendant unless there is proof and a finding by the trial court that the defendant is no longer indigent. CRIM. PROC. arts. 26.04(p), 26.05(g) (West Supp. 2017); Cates v. State, 402 S.W.3d 250, 251-52 (Tex. Crim. App. 2013); Mayer v. State, 309 S.W.3d 552, 555-56 (Tex. Crim. App. 2010); Guerra v. State, No. 11-16-00214-CR, 2017 WL 390791, at *1 (Tex. App.—Eastland Jan. 26, 2017, no pet.) (mem. op., not designated for publication). In this case, the record contains no such proof or finding. The $600 assessment for attorney's fees that is contained on the written judgment adjudicating Appellant's guilt is erroneous. Other than the necessary reformation of the judgment, we agree with counsel that this appeal is frivolous and without merit.
We note that the earlier order of deferred adjudication did not contain any assessment for attorney's fees. Thus, waiver is not an issue in this case. See Riles v. State, 452 S.W.3d 333, 338 (Tex. Crim. App. 2015).
We note that counsel has the responsibility to advise Appellant that he may file a petition for discretionary review with the clerk of the Texas Court of Criminal Appeals seeking review by that court. TEX. R. APP. P. 48.4 ("In criminal cases, the attorney representing the defendant on appeal shall, within five days after the opinion is handed down, send his client a copy of the opinion and judgment, along with notification of the defendant's right to file a pro se petition for discretionary review under Rule 68."). Likewise, this court advises Appellant that she may file a petition for discretionary review pursuant to TEX. R. APP. P. 68.
We modify the judgment to delete the $2,000 fine and the $600 attorney-fee assessment. Finding the appeal is otherwise meritless, we grant counsel's motion to withdraw and dismiss the appeal.
PER CURIAM May 24, 2018 Do not publish. See TEX. R. APP. P. 47.2(b). Panel consists of: Willson, J.,
Wright, S.C.J., and Dauphinot, S.J. Bailey, J., not participating.
Jim R. Wright, Senior Chief Justice (Retired), Court of Appeals, 11th District of Texas at Eastland, sitting by assignment.
Lee Ann Dauphinot, Senior Justice (Retired), Court of Appeals, 2nd District of Texas at Fort Worth, sitting by assignment.