Opinion
NO. 14-22-00398-CR
08-31-2023
Juchway RHODES Junior, Appellant v. The STATE of Texas, Appellee
Jessica Alane Caird, Kim K. Ogg, Houston, for Appellee. Allen C. Isbell, Houston, for Appellee. Juchway Rhodes Junior, Pro Se.
Jessica Alane Caird, Kim K. Ogg, Houston, for Appellee.
Allen C. Isbell, Houston, for Appellee.
Juchway Rhodes Junior, Pro Se.
Panel Consists of Justices Jewell, Spain, and Wilson.
OPINION
Kevin Jewell, Justice
Appellant Juchway Rhodes Junior pleaded not guilty to the first-degree felony offense of theft of property with an aggregate value of at least $300,000. See Tex. Pen. Code Ann. § 31.03(a), (e)(7). A jury found him guilty. Appellant elected to have the court assess punishment, and after appellant pleaded true to two enhancement paragraphs, the court assessed punishment at forty years confinement in the Texas Department of Corrections, Institutional Division. During the oral pronouncement of sentence and at the State's request, the court also recommended that restitution in the amount of $442,422.30 be a condition of any parole. The written judgment, however, orders restitution of $442,422.30 payable to the victim, and also orders appellant to pay $290 in court costs and $265 in fees.
Counsel's Motion to Withdraw
Appellant's appointed counsel filed a motion to withdraw and a brief concluding that this appeal is frivolous and without merit. See Anders v. California , 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). However, counsel asserts that the judgment should be modified (1) to delete or reduce certain amounts listed on the bill of costs and (2) to delete the restitution portion of the written judgment because it does not conform to the oral pronouncement. The brief meets the requirements of Anders by presenting a professional evaluation of the record and supplying us with references to the record and legal authority. See id. at 744, 87 S.Ct. 1396 ; see also High v. State , 573 S.W.2d 807 (Tex. Crim. App. 1978) ; Gainous v. State , 436 S.W.2d 137 (Tex. Crim. App. 1969). Counsel sent copies of the brief and motion to withdraw to appellant and informed appellant of his rights in compliance with the requirements of Kelly v. State , 436 S.W.3d 313 (2014). Appellant was advised of his right to review the appellate record and file a pro se brief. In addition, counsel advised appellant to immediately file a motion in this court if he wished to review the appellate record and enclosed a form motion for that purpose. Appellant did not request access to the record. This court then set a deadline for appellant to file a pro se brief. No pro se brief was filed. The State declined to file a brief in response to the Anders brief.
The trial court's written judgment imposes $442,422.30 in restitution payable to the victim. The record shows, however, that such a restitution order was not part of the trial court's oral pronouncement of appellant's sentence. Rather, during the punishment hearing the trial court granted the State's request to recommend that appellant pay $442,422.30 in restitution as a condition of parole.
A Texas trial court is without authority to place any condition on a convicted defendant's parole but may make a recommendation of a condition of parole. See Bray v. State , 179 S.W.3d 725, 728 (Tex. App.—Fort Worth 2005, no pet.) ; McNeill v. State , 991 S.W.2d 300, 302 (Tex. App.—Houston [1st Dist.] 1999, pet. ref'd, untimely filed).
A trial court's pronouncement of sentence is oral, while the judgment, including the sentence assessed, is merely the written declaration and embodiment of that oral pronouncement. Taylor v. State , 131 S.W.3d 497, 500 (Tex. Crim. App. 2004) ; Thomas v. State , No. 01-13-00598-CR, 2013 WL 6729025, at *2 (Tex. App.—Houston [1st Dist.] Dec. 19, 2013, no pet.) (mem. op., not designated for publication). Thus, "when there is a variation between the oral pronouncement of sentence and the written memorialization of the sentence, the oral pronouncement controls." Coffey v. State , 979 S.W.2d 326, 328 (Tex. Crim. App. 1998) ; Thomas , 2013 WL 6729025, at *2. Because restitution is punishment, it must be included in the oral pronouncement of sentence to be valid. See Thomas , 2013 WL 6729025 ; see also Ex parte Cavazos , 203 S.W.3d 333, 338 (Tex. Crim. App. 2006) ("We have held that restitution is punishment...."). When, as here, the trial court did not include an order to pay restitution to the victim in its oral pronouncement of appellant's sentence, the court cannot assess such restitution in its written judgment. Thomas , 2013 WL 6729025, at *2 (in Anders appeal, modifying judgment to delete payment of $825.98 as restitution).
Further, appellant's counsel has drawn our attention to three errors regarding costs and fees that he contends may be corrected by modification of the judgment because the listed costs or fees do not comply with statutory requirements. First, the bill of costs lists a cost of $185 for "Consolidated Court Cost – State." However, for offenses committed prior to January 2020, such as appellant's offense, the statutory amount for this court cost was $133. Tex. Loc. Gov't Code Ann. § 133.102. Thus, we agree that the judgment should be modified to reflect the amount of $133 in costs for "Consolidated Court Cost – State."
Second, the bill of costs lists a cost of $105 for "Consolidated Court Cost – Local." However, this cost was added by amendment in 2019 and is only applicable to offenses committed on or after January 1, 2020. See id. § 134.101. We agree that the judgment should be modified to delete the assessment of $105 for "Consolidated Court Cost – Local."
Finally, the bill of costs lists a cost of $185 for "Attach/Convey Witness." A defendant convicted of a felony or misdemeanor is responsible for reimbursing certain fees for services performed by a peace officer, such as $5 for summoning a witness, $0.29 per mile for mileage required of an officer to summon or attach a witness, and $10 per day spent by an officer who attaches a witness on the order of a court outside the county. Tex. Code Crim. Proc. art. 102.011(a)(3), (b)(3), (c). We see nothing in the record demonstrating that a peace officer served a subpoena on any witness or conveyed or attached any witness. We therefore agree that the judgment should be modified to delete the assessment of $185 for "Attach/Convey Witness."
Because the judge did not order restitution as part of appellant's sentence during oral pronouncement of the sentence, appellant is entitled to have the restitution order deleted from his sentence. See Burt v. State , 445 S.W.3d 752, 759-60 (Tex. Crim. App. 2014). However, because the court's oral pronouncement of sentence undisputedly included a recommendation that restitution should be a condition of any parole, because our obligation when confronted with a conflict between the oral pronouncement of sentence and the written judgment is to conform the written judgment to the oral pronouncement and "make the judgment speak the truth", and because we have the necessary information for reformation, we modify the trial court's judgment to delete the language requiring restitution in the amount of $442,422.30 to the victim and to state instead that the trial court recommends to the parole board that restitution of $442,422.30 be a condition of any parole. See Henderson v. State , Nos. 04-15-00648-CR, 04-15-00649-CR, 2016 WL 2753863, at *2 (Tex. App.—San Antonio May 11, 2016, no pet.) (mem. op., not designated for publication) (in Anders case when counsel briefed issue of restitution and requested modification of judgment, court agreed and modified judgment to delete restitution order and affirmed as modified); Thomas , 2013 WL 6729025, at *2. Further, we modify the judgment to: (1) reflect the amount of $133 in costs for "Consolidated Court Cost – State;" (2) reflect the amount of $0 for "Consolidated Court Cost – Local;" and (3) reflect the amount of $0 for "Attach/Convey Witness."
See Coffey , 979 S.W.2d at 328.
See Tex. R. App. P. 43.2(b) ; French v. State , 830 S.W.2d 607, 609 (Tex. Crim. App. 1992).
Banks v. State , 708 S.W.2d 460, 462 (Tex. Crim. App. 1986).
We have thoroughly reviewed the record and counsel's brief. We agree with counsel that, except for the modifications identified above, the appeal is wholly frivolous and without merit. See Bledsoe v. State , 178 S.W.3d 824, 826-27 (Tex. Crim. App. 2005). We therefore grant the motion to withdraw filed by appellant's counsel and affirm the trial court's judgment as modified. Response to the Dissent
No substitute counsel will be appointed. Should appellant wish to seek further review of this case by the Texas Court of Criminal Appeals, he must either retain an attorney to file a petition for discretionary review or file a pro se petition for discretionary review. Any petition for discretionary review must be filed within thirty days after either this opinion is rendered or the last timely motion for rehearing or motion for en banc reconsideration is overruled by this court. See Tex. R. App. P. 68.2. Any petition for discretionary review must be filed with the clerk of the Court of Criminal Appeals. See id. R. 68.3. Any petition for discretionary review must comply with the requirements of rule 68.4 of the Texas Rules of Appellate Procedure. See id. R. 68.4.
Our dissenting colleague accuses us of failing to follow proper Anders procedure and of depriving appellant of his constitutional right to meaningful appellate counsel. This accusation is baseless.
A criminal defense attorney must zealously represent the client's interest on appeal, but if the appointed attorney determines, after a conscientious examination of the record, that the appeal is wholly frivolous, the attorney is duty-bound by ethical standards to request permission to withdraw. See Anders , 386 U.S. at 744, 87 S.Ct. 1396 ; In re Schulman , 252 S.W.3d 403, 406 (Tex. Crim. App. 2008). The motion to withdraw must be accompanied by a sufficient brief assuring the appellate court that counsel's determination is indeed based on a thorough study of the record. In re Schulman , 252 S.W.3d at 406. In the so-called Anders brief, counsel must also point out "any potentially plausible points of error" if counsel concludes any exist. Id. at 406 & n.9. Counsel's duty to withdraw is based on applicable professional and ethical responsibilities as an officer of the court "not to burden the judicial system with false claims, frivolous pleadings, or burdensome time demands." Id. at 407.
When an appellate court receives from appointed counsel a motion to withdraw accompanied by a brief demonstrating discharge of counsel's required duties, the court of appeals will, as the Court of Criminal Appeals puts it: "either agree that the appeal is wholly frivolous, grant the attorney's motion to withdraw, and dismiss the appeal, or it will determine that there may be plausible grounds for appeal. If the court of appeals decides that there are any colorable claims for appeal, it will: (1) grant the original attorney's motion to withdraw; and (2) abate the case and send it back to the trial court to appoint a new attorney with directions to file a merits brief." Id. at 409. According to the dissenting justice, we have deviated from these prescribed options because we have identified at counsel's urging not only plausible but "nonjudgment error" and corrected the judgment accordingly, but we have denied appellant the right to counsel because we have not abated and remanded the case for appointment of a new attorney charged with filing a non- Anders merits brief.
The majority opinion does not use the term "nonjudgment error."
To be clear, we are modifying the written judgment to conform it to the trial court's oral pronouncement, as we are authorized to do. Tex. R. App. P. 43.2(b) (appellate court may modify the trial court's judgment and affirm it as modified); Banks , 708 S.W.2d at 462 ; Knight v. State , 581 S.W.2d 692, 694 (Tex. Crim. App. 1979) (when court has necessary data and evidence before it for reformation, the judgment and sentence may be reformed on appeal). As stated, when there is a conflict between the oral pronouncement of sentence in open court and the sentence set out in the written judgment, the oral pronouncement controls. Thompson v. State , 108 S.W.3d 287, 290 (Tex. Crim. App. 2003). The solution in those cases in which the oral pronouncement and the written judgment conflict is to reform the written judgment to conform to the sentence that was orally pronounced. Id.
To be sure, modification or reformation of a judgment is not explicitly mentioned in In re Schulman, Bledsoe , Stafford , or any other Court of Criminal Appeals authority discussing permissible actions an appellate court may take in Anders cases. But we are reminded that Anders procedure is "not constitutional dogma," that Anders outlines "merely one method" of satisfying constitutional requirements for indigent criminal appeals, and that state procedures for protecting indigent defendants’ constitutional rights may vary from Anders " ‘so long as those procedures adequately safeguard a defendant's right to appellate counsel.’ " In re Schulman , 252 S.W.3d at 408, 410 (quoting Smith v. Robbins , 528 U.S. 259, 265 [120 S.Ct. 746, 145 L.Ed.2d 756] (2000) ).
Stafford v. State , 813 S.W.2d 503 (Tex. Crim. App. 1991).
Based on explicit authority permitting modification of judgments, Texas appellate courts, including our state's highest criminal court and our Houston courts of appeals, have for decades granted motions to withdraw in Anders cases while modifying judgments and affirming those judgments as modified when non-reversible error is brought to the court's attention by appointed counsel or is recognized independently. E.g., Weddle v. State , 522 S.W.2d 475, 476 (Tex. Crim. App. 1975) ; Johnson v. State , 490 S.W.2d 587, 587-88 (Tex. Crim. App. 1973) (in Anders case, court modified judgment to make it speak the truth and affirmed as modified); Greer v. State , No. 14-22-00548-CR, 2023 WL 4663175, at *1 (Tex. App.—Houston [14th Dist.] July 20, 2023, n.p.h.) (mem. op., not designated for publication) ; Garrison v. State , Nos. 01-12-01145-CR, 01-12-01146-CR, 2014 WL 2932854, at *1 (Tex. App.—Houston [1st Dist.] June 26, 2014, pet. ref'd) (mem. op., not designated for publication) ; Melendres v. State , Nos. 14-00-00784-CR, 14-00-00785-CR, 2001 WL 363500, at *1 (Tex. App.—Houston [14th Dist.] Apr. 12, 2001, no pet.) (mem. op., not designated for publication) ; Ortiz v. State , No. 14-00-00304-CR, 2000 WL 1784981, at *3 (Tex. App.—Houston [14th Dist.] Dec. 7, 2000, no pet.) (mem. op., not designated for publication). These include cases when, like the present one, the court modifies a judgment to correct a variance with the oral pronouncement. E.g., Jimenez v. State , No. 11-22-00205-CR, 2023 WL 3872633, at *2 (Tex. App.—Eastland June 8, 2023, n.p.h.) (mem. op., not designated for publication) ( Anders case where variance between written judgment and oral pronouncement was non-reversible error; affirmed as modified); Van Flowers v. State , 629 S.W.3d 707, 711 (Tex. App.—Houston [1st Dist.] 2021, no pet.) (noting that consistent with its authority to modify a judgment to include or delete an affirmative finding, a court of appeals can modify judgments to correct errors with respect to court costs and fees, fines, and conflicts between the trial court's oral pronouncement and the written judgment, among other things); Henderson , 2016 WL 2753863, at *2 ; Thomas , 2013 WL 6729025, at *2. We see no reason to deviate now from this historical and routinely accepted practice, in which the Court of Criminal Appeals itself has engaged and never declared as running afoul of Anders or the Constitution.
In Weddle , court-appointed counsel filed an Anders brief in which counsel asserted the appeal was frivolous, but he also directed the court to an arguable point of error, namely, that the written judgment incorrectly stated that appellant was arraigned when he was not. The Court of Criminal Appeals agreed with counsel's point, reformed the judgment, and affirmed the judgment as reformed.
The key point of Anders is to safeguard indigent defendants’ rights to appellate counsel. See In re Schulman , 252 S.W.3d at 410. We do not share the dissenting justice's view that the appellant in this case either has been denied the right to appellate counsel or that granting counsel's motion to withdraw will impair that right. Much to the contrary, counsel has performed his duty consistent with Anders and identified issues meriting modification of the judgment even if they do not qualify as non-frivolous, arguable issues for reversal of the conviction or sentence. As explained, we agree in particular with counsel's argument that the restitution portion in the written judgment conflicts with the trial court's oral pronouncement of sentence. But our conclusion on that score does not compel reversal of the judgment. Our research has uncovered only one other instance among Texas state appeals when appellate counsel filed an Anders brief asserting that the appeal was frivolous but nonetheless urged the court to modify the judgment to delete a restitution award when it conflicted with the oral pronouncement of judgment. Henderson , 2016 WL 2753863, at *1. In that case, the court of appeals agreed with counsel, modified the judgment, affirmed the judgment as modified, and granted counsel's motion to withdraw. Id. at *2. We agree and are doing the same. That resolution is hardly cause for alarm. Nothing about our judgment is inconsistent with Anders or appellant's constitutional rights.
Appellant has not filed a pro se brief, though afforded a reasonable opportunity to do so. In this respect, today's case is distinguishable from Bledsoe at least because, in that case, the defendant filed a pro se brief in response to counsel's Anders brief. Bledsoe , 178 S.W.3d at 826. The defendant in Ortiz also filed a pro se response.
Regardless whether this case may be said to involve "nonjudgment error" or "nonfrivolous error", the case does not present one of reversible error, and we are not reversing any part of the judgment. Not only is the conflict between the written judgment and oral pronouncement not reversible error, the First Court of Appeals has said this type of variance is not even "an arguable issue." Hudson v. State , No. 01-17-00759-CR, 2018 WL 6175316, at *1 (Tex. App.—Houston [1st Dist.] Nov. 27, 2018, no pet.) (mem. op., not designated for publication). The dissent's insistence on forcing another attorney to file a "non- Anders " brief addressing the same issue that the first counsel has already briefed, that entitles appellant to no more than a modification of the judgment and affirmance, and on which the court needs no further enlightenment, seems to us a waste of time and resources that advances no constitutionally required end.
( Spain, J.,dissenting).
DISSENTING OPINION
Charles A. Spain, Justice
By failing to follow the procedure in Bledsoe v. State , the majority sure raises a lot of interesting questions:
Bledsoe , 178 S.W.3d 824 (Tex. Crim. App. 2005).
• Do the Texas Rules of Appellate Procedure authorize Texas intermediate appellate courts to change the practice mandated by Anders v. California by reclassifying a nonfrivolous error in the judgment as a "nonjudgment error" or "nonjudgment mistake" and thus something the intermediate appellate court can and should modify and as modified affirm?
Anders , 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967) ; Tex. R. App. P. 43.2(b).
• Is a restitution order that is a part of the "Judgment of Conviction by Jury" legally not a part of that judgment such that appointed counsel has no duty to the client to argue on appeal that the restitution order is nonfrivolous error?
The first page of the "Judgment of Conviction" is attached to this dissenting opinion so there is no question where the mistake is. And appointed counsel actually did argue it was error: "Because the district court did not order restitution at the time it pronounced sentence, the inclusion of a restitution requirement in the written judgment was error."
• Is arguing on appeal that the trial court erred in ordering $442,422.30 in restitution an unethical frivolous argument under Anders that would subject appointed counsel to potential judicial sanctions and potential disciplinary action by the bar, even though this court must "fix" that unethical frivolous argument by using Texas Rule of Appellate Procedure 43.2(b) to classify it as "nonjudgment error"?
• Although the majority does not make the argument, does the law dignify "fixing" a $442,422.30 "nonjudgment error" or "nonjudgment mistake" restitution order but not "fixing" one for $5.00, thus haggling over the amount?
If it seems silly that we're here, then I don't disagree. But here we are.
Perhaps a more conventional phrasing of the legal mess unleashed by the majority might be:
Does the law allow appointed counsel for a convicted indigent defendant to file a brief that identifies "error" in the four-corners of the criminal judgment, call that an Anders brief, request permission to withdraw as counsel, and forward a copy of the brief to the indigent defendant to allow the defendant to raise any points on appeal? Can the appellate court conclude that the "nonjudgment error" warrants correction, correct that "nonjudgment error," yet allow counsel to withdraw and deprive defendant of the right to counsel guaranteed by the federal and state constitutions throughout the entire proceeding in the court of appeals because the judgment contains no nonfrivolous error?
Few, if any, opinions of the Supreme Court of the United States are so familiar to justices and staff attorneys at the courts of appeals as Anders v. California , 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). And its holding is well known:
The constitutional requirement of substantial equality and fair process can only be attained where counsel acts in the role of an active advocate on behalf of his client, as opposed to that of amicus curiae. The no-merit letter and the procedure it triggers do not reach that dignity. Counsel should, and can with honor and without conflict, be of more assistance to his client and to the court. His role as advocate requires that he support his client's appeal to the best of his ability. Of course, if counsel finds his case to be wholly frivolous, after a conscientious examination of it, he should so advise the court and request permission to withdraw. That request must, however, be accompanied by a brief referring to anything in the record that might arguably support the appeal. A copy of counsel's brief should be furnished the indigent and time allowed him to raise any points that he chooses; the court—not counsel—then proceeds, after a full examination of all the proceedings, to decide whether the case is wholly frivolous. If it so finds it may grant counsel's request to withdraw and dismiss the appeal insofar as federal requirements are concerned, or proceed to a decision on
the merits, if state law so requires. On the other hand, if it finds any of the legal points arguable on their merits (and therefore not frivolous) it must, prior to decision, afford the indigent the assistance of counsel to argue the appeal.
Id. at 744, 87 S.Ct. 1396 (omitting footnote 3).
Here, the majority identifies what I believe is nonfrivolous error in the judgment , corrects that error, and allows appointed counsel to withdraw. In doing so, the majority cites Bledsoe v. State , yet does not follow it:
The majority studiously avoids labelling the mistaken restitution order that the majority proceeds to "fix," suggesting that if we eliminate the word for whatever it is, then we won't have to think about how it fits into Anders practice.
When faced with an Anders brief and if a later pro se brief is filed, the court of appeals has two choices. It may determine that the appeal is wholly frivolous and issue an opinion explaining that it has reviewed the record and finds no reversible error. Anders , 386 U.S. at 744 . Or, it may determine 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. [ Stafford v. State , 813 S.W.2d 503, 511 (Tex. Crim. App. 1991).] Only after the issues have been briefed by new counsel may the court of appeals address the merits of the issues raised. Id. at 509–10 (quoting Anders , 386 U.S. at 744 ).
Bledsoe v. State , 178 S.W.3d 824, 826–27 (Tex. Crim. App. 2005).
It seems clear to me that we must follow the precedent of the Supreme Court of the United States and the Court of Criminal Appeals of Texas. Even though the majority "fixes" things for appellant, it does so while depriving appellant of the right to counsel for the duration of this appeal. No matter how well intentioned this court is, that's not the adversarial system guaranteed in the federal and state constitutions.
The majority cites a bunch of cases that do what the majority does, yet not even one engages the issue whether that action is permissible when appointed counsel files an Anders brief. Mere recitation of what a court did is not precedent. See In re Kholaif , 624 S.W.3d 228, 230–31 (order), mand. dism'd , 615 S.W.3d 369 (Tex. App.—Houston [14th Dist.] 2020) (orig. proceeding) (discussing precedent).
If we make an error while modifying, and as so modified, affirming the "nonjudgment error," then appellant will have no counsel who could point out that error in a motion for rehearing because we allowed that counsel to withdraw. I suppose if appellant can't raise this "nonjudgment error" or "nonjudgment mistake" but we can and should "fix" it, then maybe it might make sense to some that appellant can't tell us we didn't do it right. To be clear, I don't think that.
If appointed counsel had filed an appellant's brief identifying the error in the restitution order as an issue or point on appeal and had not asked to withdraw as counsel, then I wouldn't have a problem. But I just can't accept the majority's argument that this restitution-order nonfrivolous error cannot be raised by appellant in an issue or point, yet we can nonetheless "fix" it. I'm somewhat surprised the majority doesn't criticize appointed counsel for mentioning the "error" at all. Supra note 3.
I dissent from this court's judgment. I would abate the appeal and remand the case to the trial court for the limited purpose of appointing new appellate counsel for the indigent defendant to argue the appeal as required by the federal and state constitutions and precedent from the court of criminal appeals. Attachment
If the court of criminal appeals were to modify Bledsoe and hold that the proper procedure in this unusual situation is to deny appointed counsel's motion to withdraw and order appointed counsel to file an appellant's brief raising the error in the restitution order as an issue or point in that brief, then that's fine by me.
?