Alexander v. State
Decision Date | 12 November 2009 |
Docket Number | No. 2-08-282-CR.,2-08-282-CR. |
Citation | 301 S.W.3d 361 |
Parties | Kyle Edward ALEXANDER, Appellant v. The STATE of Texas, State. |
Court | Texas Court of Appeals |
Maggie McBride, Hurst, TX, for Appellant.
Charles M. Mallin, Assistant Criminal Director Attorney, Fort Worth, TX, for Appellee.
Panel: DAUPHINOT, GARDNER, and WALKER, JJ.
Pursuant to a plea bargain agreement, Kyle Edward Alexander pleaded guilty to aggravated assault with a deadly weapon. On June 18, 2007, the trial court placed him on five years' deferred adjudication community supervision and, in the conditions of community supervision attached to the "Unadjudicated Judgment on Plea of Guilty or Nolo Contendere and Suspending Imposition of Sentence," ordered him to pay restitution in the amount of $10,871.25 as a condition of his community supervision. The State filed a petition to proceed to adjudication on June 19, 2008, alleging that Alexander had violated four conditions of his community supervision. Alexander pleaded "true" to all four violations. The trial court found that all four paragraphs of the petition were true, adjudicated Alexander guilty, and sentenced him to ten years' confinement. The trial court's written judgment included an order that Alexander pay $10,311.25 in restitution. Alexander appeals from the trial court's determination to proceed to an adjudication of guilt.
Alexander's court-appointed appellate counsel has filed a motion to withdraw as counsel and a brief in support of that motion. In the brief, counsel reviewed the history of the case and detailed the evidence presented. Counsel's brief and motion meet the requirements of Anders v. California1 by presenting a professional evaluation of the record demonstrating why there are no reversible grounds on appeal and referencing any grounds that might arguably support the appeal. See Mays v. State, 904 S.W.2d 920, 922-23 (Tex.App.-Fort Worth 1995, no pet.). This court afforded Alexander the opportunity to file a brief on his own behalf, but he did not do so.
Once an appellant's court-appointed attorney files a motion to withdraw on the ground that the appeal is frivolous and fulfills the requirements of Anders, this court is obligated to undertake an independent examination of the record. See Stafford v. State, 813 S.W.2d 503, 511 (Tex. Crim.App.1991); Mays, 904 S.W.2d at 922-23. Only then may we grant counsel's motion to withdraw. See Penson v. Ohio, 488 U.S. 75, 82-83, 109 S.Ct. 346, 351, 102 L.Ed.2d 300 (1988).
We have carefully reviewed counsel's brief and the record. The record shows that after the trial court adjudicated Alexander's guilt, it did not include a restitution order in its oral pronouncement of Alexander's sentence. Yet the trial court's written judgment adjudicating Alexander's guilt includes an order that he pay $10,311.25 in restitution.
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. See Tex.Code Crim. Proc. Ann. art. 42.03, § 1 (Vernon 2006) ( ). When the oral pronouncement of sentence and the written judgment vary, the oral pronouncement controls. Taylor v. State, 131 S.W.3d 497, 500 (Tex.Crim.App.2004); Coffey v. State, 979 S.W.2d 326, 328 (Tex. Crim.App.1998). The rationale for this rule is that See Ex parte Madding, 70 S.W.3d 131, 135 (Tex.Crim. App.2002).
When an accused receives deferred adjudication, no sentence is imposed. See Davis v. State, 968 S.W.2d 368, 371 (Tex.Crim.App.1998); Abron v. State, 997 S.W.2d 281, 282 (Tex.App.-Dallas 1998, pet. ref'd). When the accused violates a condition of community supervision, the court may proceed to adjudicate guilt and to assess punishment. Tex.Code Crim. Proc. Ann. art. 42.12, § 5(a) (Vernon 2006); Taylor, 131 S.W.3d at 499. Thus, when guilt is adjudicated, the order adjudicating guilt sets aside the order deferring adjudication, including any previously imposed fines. Taylor, 131 S.W.3d at 501-02 ( ); Abron, 997 S.W.2d at 282.
In Abron, the order deferring adjudication assessed a fine as a condition of community supervision. 997 S.W.2d at 282. The judge later adjudicated the defendant's guilt and did not orally pronounce a fine, but he did include the fine in the written judgment. Id. On appeal, the Dallas court modified the judgment to delete the fine because it was not orally pronounced as part of the defendant's sentence. Id.; see also Ex parte Cavazos, 203 S.W.3d 333, 338 (Tex.Crim.App.2006) ( ); Brown v. State, No. 02-08-00063-CR, 2009 WL 1905231, at *2 ( )(mem. op., not designated for publication) (a defendant's sentence and, therefore, must be included in the trial court's oral pronouncement of that restitution is punishment that is part of ...
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