Opinion
No. 13-08-00699-CR
Opinion delivered and filed August 25, 2009. DO NOT PUBLISH. TEX. R. APP. P. 47.2(b).
On appeal from the 36th District Court of San Patricio County, Texas.
Before Chief Justice VALDEZ and Justices YAÑEZ and BENAVIDES.
MEMORANDUM OPINION
Appellant, Michael Anthony Brasfield, pleaded guilty in 2007 to one count of aggravated sexual assault, a first-degree felony. The trial court deferred adjudication, placed appellant on community supervision for five years, and ordered him to pay a fine of $1,500 and court costs. In September 2008, the State filed a motion to revoke, alleging various violations of the terms of his community supervision. Appellant answered "true" to some of the violations, and "not true" to others. Following a hearing, the trial court adjudicated him guilty and sentenced him to ten years' imprisonment in the Institutional Division of the Texas Department of Criminal Justice. Appellant appeals the revocation of his community supervision. Appellant's appellate counsel, concluding that "the appeal in this cause is frivolous and without merit," filed an Anders brief, in which she reviewed the merits, or lack thereof, of the appeal. We modify the judgment, and as modified, affirm.
See Tex. Penal Code Ann. § 22.021 (Vernon Supp. 2008).
We note that the record contains the trial court's certification, which states that this case "is not a plea-bargain case, and the defendant has the right of appeal." See Tex. R. App. P. 25.2 (a)(2).
See Anders v. California, 386 U.S. 738, 744 (1967).
I. Discussion
Pursuant to Anders v. California, appellant's court-appointed appellate counsel has filed a brief with this Court, stating that her review of the record yielded no grounds or error upon which an appeal can be predicated. Although counsel's brief does not advance any arguable grounds of error, it does present a professional evaluation of the record demonstrating why there are no arguable grounds to be advanced on appeal. In compliance with High v. State, appellant's counsel has carefully discussed why, under controlling authority, there are no errors in the trial court's judgment. Counsel has informed this Court that she has: (1) examined the record and found no arguable grounds to advance on appeal, (2) served a copy of the brief and counsel's motion to withdraw on appellant, and (3) informed appellant of his right to review the record and to file a pro se response. More than an adequate period of time has passed, and appellant has not filed a pro se response.II. Independent Review
Upon receiving an Anders brief, we must conduct a full examination of all the proceedings to determine whether the case is wholly frivolous. We have reviewed the entire record and counsel's brief and have found nothing that would arguably support an appeal. In our review of the record, however, we note that there is a variation between the oral pronouncement of sentence and the written judgment. The judgment states that the sentence is ten years' imprisonment and a $1,500 fine. However, the sentence, as announced in open court, was as follows:[Court]: . . . I'm going to find you guilty of the offense of aggravated sexual assault as alleged in the indictment in this case, assess punishment at ten years['] confinement in the Institutional Division of the Texas Department of Criminal Justice. No fine will be assessed in this particular matter, fine is not an issue.When there is a variation between the oral pronouncement of sentence and the written memorialization of the sentence, the oral pronouncement controls. Here, the record is clear that no fine was imposed. When, as here, the court of appeals has the necessary data and evidence before it for reformation, an erroneous judgment may be reformed on appeal. We will reform the judgment to delete the $1,500 fine. As reformed, we affirm the judgment of the trial court.