Opinion
06-21-00147-CR
05-23-2022
KWAME OTOYA FERGUSON, Appellant v. THE STATE OF TEXAS, Appellee
Do Not Publish
Submitted: April 25, 2022
On Appeal from the 6th District Court Lamar County, Texas Trial Court No. 27883.
Before Morriss, C.J., Stevens and van Cleef, JJ.
MEMORANDUM OPINION
Josh R. Morriss, III Chief Justice
Kwame Otoya Ferguson appeals from the revocation of his community supervision on an underlying charge of criminal mischief. The State's motion to revoke Ferguson's community supervision alleged that he violated the terms and conditions of his community supervision by delivering methamphetamine and by failing to perform community service restitution work as ordered. As a result of Ferguson's pleas of true to the allegations, the trial court revoked Ferguson's community supervision, found him guilty of the underlying offense of criminal mischief, sentenced him to twenty-four months' confinement in state jail, and ordered him to pay the restitution balance to his victim.
Ferguson had entered into a plea agreement with the State in which he pled guilty to the offense of criminal mischief causing pecuniary loss in in an amount of $2,500.00 or more, but less than $30,000.00, a state jail felony. See Tex. Penal Code Ann. § 28.03(b)(4)(A) (Supp.). In accordance with the plea agreement, Ferguson had been placed on deferred adjudication community supervision for a period of three years and was ordered to pay restitution to the victim. One year later, the State moved to revoke Ferguson's community supervision and to proceed to an adjudication of his guilt.
In companion cause number 06-21-00146-CR, Ferguson appeals four convictions of manufacture or delivery of a controlled substance. We address that case in a separate opinion.
Ferguson's attorney has filed a brief that states that he has reviewed the record and has found no genuinely arguable issues that could be raised on appeal. The brief sets out the procedural history of the case and summarizes the evidence elicited during trial. Since counsel has provided a professional evaluation of the record demonstrating why there are no arguable grounds to be advanced, the requirements of Anders v. California have been met. See Anders v. California, 386 U.S. 738, 743-44 (1967); In re Schulman, 252 S.W.3d 403, 406 (Tex. Crim. App. 2008) (orig. proceeding); Stafford v. State, 813 S.W.2d 503, 509-10 (Tex. Crim. App. 1991); High v. State, 573 S.W.2d 807, 812-13 (Tex. Crim. App. [Panel Op.] 1978). Counsel also filed a motion with this Court seeking to withdraw as counsel in this appeal.
On February 23, 2022, counsel mailed to Ferguson copies of the brief, the appellate record, and the motion to withdraw. Ferguson was informed of his rights to review the record and file a pro se response. By letter dated February 23, this Court informed Ferguson that any pro se response was due on or before March 25. On April 4, this Court further informed Ferguson that the case would be set for submission on the briefs on April 25. We received neither a pro se response from Ferguson nor a motion requesting an extension of time in which to file such a response.
We have reviewed the entire appellate record and have independently determined that no reversible error exists. See Bledsoe v. State, 178 S.W.3d 824, 826-27 (Tex. Crim. App. 2005). However, nonreversible error is found in the inclusion of the restitution order in the trial court's judgment.
When a defendant receives deferred adjudication, no sentence is imposed. Taylor v. State, 131 S.W.3d 497, 502 (Tex. Crim. App. 2004). When the defendant's guilt is later adjudicated, the judgment adjudicating guilt sets aside the order deferring adjudication, including any fine or restitution imposed in that order. Id. at 501-02. Because restitution is considered punishment, it must be orally pronounced. Ex parte Cavazos, 203 S.W.3d 333, 338 (Tex. Crim. App. 2006); see Burt v. State, 445 S.W.3d 752, 756-57 (Tex. Crim. App. 2014); Weir v. State, 278 S.W.3d 364, 367 (Tex. Crim. App. 2009); Taylor, 131 S.W.3d at 502. When there is a conflict between the oral pronouncement of a sentence and the written judgment, the oral pronouncement controls. Taylor, 131 S.W.3d at 500.
The record in this case demonstrates that the trial court failed to orally pronounce any order to pay restitution during Ferguson's sentencing. The Texas Rules of Appellate Procedure give this Court authority to modify judgments to correct errors and make the record speak the truth. Tex.R.App.P. 43.2(b); French v. State, 830 S.W.2d 607, 609 (Tex. Crim. App. 1992); Rhoten v. State, 299 S.W.3d 349, 356 (Tex. App.-Texarkana 2009, no pet.).
Because no restitution was orally pronounced in Ferguson's presence during sentencing, we modify the trial court's judgment by deleting the order to pay restitution. As modified, the trial court's judgment is affirmed.