Opinion
No. 05-05-01099-CR
Opinion issued March 28, 2006. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the Criminal District Court No. 2, Dallas County, Texas, Trial Court Cause No. F03-73335-MI. Remanded and Abated.
Before Justices WHITTINGTON, BRIDGES, and LANG-MIERS.
MEMORANDUM OPINION
Otis Rashad Jackson pleaded guilty to aggravated robbery with a deadly weapon. Pursuant to the plea bargain agreement, the trial judge deferred adjudication of guilt, placed appellant on ten years' community supervision, and assessed a $500 fine. The State later moved to adjudicate guilt, alleging appellant violated several conditions of supervision. Appellant pleaded not true to the allegations in the motion to adjudicate guilt. Following a hearing, the judge adjudicated appellant guilty and sentenced him to twenty years' imprisonment. Appellant's attorney filed a brief in which she concludes the appeal is wholly frivolous and without merit. The brief meets the requirements of Anders v. California, 386 U.S. 738 (1967). The brief presents a professional evaluation of the record showing why, in effect, there are no arguable grounds to advance. See High v. State, 573 S.W.2d 807, 811 (Tex.Crim.App. [Panel Op.] 1978). Counsel delivered a copy of the brief to appellant. We advised appellant he has a right to file a pro se response, but appellant did not file a response. After reviewing the record, we concluded there is at least one arguable issue presented in this appeal. See Bledsoe v. State, 178 S.W.3d 824 (Tex.Crim.App. 2005). The record reflects that when the judge sentenced appellant following adjudication of guilt, the judge orally pronounced a twenty-year sentence of imprisonment. However, the judgment adjudicating guilt reflects a $500 fine that was not orally pronounced and, thus, is not properly included in the judgment. See Taylor v. State, 131 S.W.3d 497, 502 (Tex.Crim.App. 2004); McCoy v. State, 81 S.W.3d 917, 919 (Tex.App.-Dallas 2002, pet. ref'd). Appellate counsel does not mention the discrepancy between the oral pronouncement and the written judgment in the Anders brief. We grant appellate counsel's motion to withdraw. See Stafford v. State, 813 S.W.2d 503, 511 (Tex.Crim.App. 1991). We remand the appeal to the trial court. We order the trial judge to appoint new counsel to represent appellant, investigate the record, and file a brief on the merits. See Stafford, 813 S.W.3d at 511. Appellate counsel should investigate the record and file a brief discussing the propriety of including the fine in the judgment adjudicating guilt and any other grounds that might arguably support the appeal. See Stafford, 813 S.W.3d at 511. We further order the trial judge to notify this Court in writing of the identity of new appellate counsel and the date on which counsel was appointed. We remove the case from the submission docket. We abate the appeal to allow the trial judge to comply with this Court's orders.