Opinion
No. 11-15-00200-CR
04-14-2016
MATTHEW TYLER JONES, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 104th District Court Taylor County, Texas
Trial Court Cause No. 18637B
MEMORANDUM OPINION
Appellant, Matthew Tyler Jones, pleaded guilty in December 2012 to the offense of evading arrest. The trial court deferred a finding of guilt and placed Appellant on deferred adjudication community supervision for a term of four years. In February 2015, the State filed a motion to revoke Appellant's community supervision and to adjudicate his guilt based upon alleged violations of the terms and conditions of his community supervision. At a hearing on the State's motion to adjudicate, Appellant pleaded "true" to the alleged violations. The trial court found the allegations to be true, adjudicated Appellant guilty of the charged offense, and assessed his punishment at confinement for five years and a fine of $794. We modify and dismiss.
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 the appeal is frivolous. Counsel has provided Appellant with a copy of the brief, the motion to withdraw, the clerk's record, the reporter's record, and also a form for pro se access to the record. In an explanatory letter, counsel advised Appellant of his right to review the record and 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.).
Appellant has filed a pro se response to counsel's motion to withdraw and supporting brief. In addressing an Anders brief and pro se response, a court of appeals may only determine (1) that the appeal is wholly frivolous and issue an opinion explaining that it has reviewed the record and finds no reversible error or (2) that arguable grounds for appeal exist and remand the cause to the trial court so that new counsel may be appointed to brief the issues. Schulman, 252 S.W.3d at 409; Bledsoe v. State, 178 S.W.3d 824, 826-27 (Tex. Crim. App. 2005).
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. Schulman, 252 S.W.3d at 409. In this regard, a plea of true standing alone is sufficient to support a trial court's decision to revoke community supervision and proceed with an adjudication of guilt. See Moses v. State, 590 S.W.2d 469, 470 (Tex. Crim. App. [Panel Op.] 1979). Furthermore, issues relating to an original plea proceeding may not be raised in a subsequent appeal from the revocation of community supervision and adjudication of guilt. Manuel v. State, 994 S.W.2d 658, 661-62 (Tex. Crim. App. 1999).
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 includes a fine of $794. When the trial court revoked Appellant's community supervision, adjudicated his 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 Supp. 2015); 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). Other than the necessary reformation of the judgment, we agree with counsel that this appeal is frivolous and without merit.
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 he may file a petition for discretionary review pursuant to TEX. R. APP. P. 68.
We modify the judgment of the trial court to delete the $794 fine. Finding that the appeal is otherwise meritless, we grant counsel's motion to withdraw and dismiss the appeal.
PER CURIAM April 14, 2016 Do not publish. See TEX. R. APP. P. 47.2(b). Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.