                       COURT OF APPEALS
                        SECOND DISTRICT OF TEXAS
                             FORT WORTH


                              NO. 2-08-282-CR


KYLE EDWARD ALEXANDER                                            APPELLANT

                                      V.

THE STATE OF TEXAS                                                     STATE

                                  ------------

     FROM CRIMINAL DISTRICT COURT NO. 3 OF TARRANT COUNTY

                                  ------------

                                 OPINION

                                  ------------

      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. California 1 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




      1
          … 386 U.S. 738, 87 S. Ct. 1396 (1967).
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

(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) (providing that “sentence shall be pronounced in the

defendant’s presence”). 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 “the imposition

of sentence is the crucial moment when all of the parties are physically present

at the sentencing hearing and able to hear and respond to the imposition of

sentence. Once he leaves the courtroom, the defendant begins serving the

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sentence imposed.” 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 (noting that deferred adjudication differs in this regard from regular

probation, where a fine orally pronounced at sentencing survives revocation of

probation); 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) (holding that restitution is punishment); Brown v. State,

                                       4
No. 02-08-00063-CR, 2009 WL 1905231, at *2 (Tex. App.—Fort Worth July

2, 2009, no pet. h.) (mem. op., not designated for publication) (holding that

restitution is punishment that is part of a defendant’s sentence and, therefore,

must be included in the trial court’s oral pronouncement of sentence to be

properly included in the written judgment).

      Thus, here, the judgment adjudicating Alexander’s guilt set aside the

unadjudicated judgment previously entered by the trial court that included as an

attached condition of his community service the requirement that he pay

restitution in the amount of $10,871.25. See Taylor, 131 S.W.3d at 502;

Abron, 997 S.W.2d at 282. And the trial court did not include an order for

restitution in its oral pronouncement of sentence upon Alexander. Because the

requirement that Alexander pay $10,311.25 in restitution is punishment and

part of his sentence in the judgment adjudicating his guilt, it must have been

included in the trial court’s oral pronouncement of sentence to be properly

included in the written judgment. See, e.g., Taylor, 131 S.W.3d at 502; Abron,

997 S.W.2d at 282. Thus, we reform the trial court’s judgment to delete the

language regarding the payment of restitution. See Bray v. State, 179 S.W.3d

725, 726 (Tex. App.—Fort Worth 2005, no pet.) (en banc) (holding that an

appellate court has the authority to reform a judgment in an Anders appeal and

to affirm that judgment as reformed).

                                        5
      Except for this necessary modification to the judgment, we agree with

counsel that this appeal is wholly frivolous and without merit; we find nothing

else in the record that arguably might support an appeal. See Bledsoe v. State,

178 S.W.3d 824, 827–28 (Tex. Crim. App. 2005). Accordingly, we grant

counsel’s motion to withdraw and affirm the trial court’s judgment as modified.




                                                SUE WALKER
                                                JUSTICE

PANEL: DAUPHINOT, GARDNER, and WALKER, JJ.

PUBLISH

DELIVERED: November 12, 2009




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