                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                              NO. 02-17-00112-CR


JARENTE MITCHELL                                                      APPELLANT

                                        V.

THE STATE OF TEXAS                                                          STATE


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      FROM CRIMINAL DISTRICT COURT NO. 3 OF TARRANT COUNTY
                    TRIAL COURT NO. 1363506D

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                         MEMORANDUM OPINION1

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      Appellant Jarente Mitchell appeals from the trial court’s judgment revoking

his community supervision, adjudicating his guilt for burglary of a habitation, and

sentencing him to five years’ confinement and a $190.99 fine. We modify the

judgment and the incorporated order to withdraw funds to delete the fine and, as

modified, affirm the trial court’s judgment. See Tex. R. App. P. 43.2(b).


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       See Tex. R. App. P. 47.4.
      Mitchell was indicted with burglary of a habitation. See Tex. Penal Code

Ann. § 30.02(a) (West Supp. 2017). On May 20, 2014, under the terms of a

plea-bargain agreement, Mitchell pleaded guilty to the offense, and the trial court

deferred adjudicating his guilt and placed him on community supervision for three

years. The trial court also imposed a nonsuspended $300 fine, which was an

additional term of the plea-bargain agreement. The conditions initially imposed

on Mitchell’s community supervision were supplemented and amended several

times. During the period of Mitchell’s community supervision, the State filed a

petition to proceed to a hearing to determine if Mitchell’s community supervision

should be revoked and his guilt adjudicated. The State alleged that Mitchell had

violated five conditions: (1) committed a new offense, (2) used marihuana on

nine occasions, (3) failed to report to his community-supervision officer twice,

(4) failed to pay the monthly supervision fee fourteen times, and (5) failed to pay

court costs, the fine, or attorney’s fees. The trial court heard evidence regarding

the State’s violation allegations, found each allegation to be true, and adjudged

Mitchell guilty of the underlying offense. Based on the same evidence adduced

at the adjudication hearing, the trial court revoked Mitchell’s community

supervision and sentenced him to five years’ confinement.            In the judgment

adjudicating Mitchell’s guilt, the trial court imposed a fine of $190.99.

      Mitchell timely filed a notice of appeal from the trial court’s judgment. See

Tex. R. App. P. 26.2(a). Mitchell’s court-appointed appellate counsel has filed a

motion to withdraw as counsel, accompanied by a brief in support of that motion.


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In the brief, counsel states that in his professional opinion, this appeal is frivolous

and without merit. Counsel’s brief and motion meet the requirements of Anders

v. California by presenting a professional evaluation of the record demonstrating

why there are no arguable grounds for relief. 386 U.S. 738, 744 (1967). Mitchell

did not respond to counsel’s brief or motion although both counsel and this court

advised him of his right to do so. See Kelly v. State, 436 S.W.3d 313, 319 (Tex.

Crim. App. 2014).

      Once an appellant’s court-appointed attorney files a motion to withdraw on

the ground that an appeal is frivolous and fulfills the requirements of Anders, we

have a supervisory obligation to undertake an independent examination of the

record. See Stafford v. State, 813 S.W.2d 503, 511 (Tex. Crim. App. 1991);

Mays v. State, 904 S.W.2d 920, 922–23 (Tex. App.—Fort Worth 1995, no pet.).

In this evaluation, we consider the record and the arguments raised in the Anders

brief. See United States v. Wagner, 158 F.3d 901, 902 (5th Cir. 1998); In re

Schulman, 252 S.W.3d 403, 409 (Tex. Crim. App. 2008) (orig. proceeding). We

have carefully reviewed the record and counsel’s brief and have determined that

the trial court’s judgment requires modification with regard to the assessment of a

$190.99 fine that appears in the trial court’s written judgment adjudicating guilt

and the order to withdraw funds from Mitchell’s inmate trust account. The trial

court did not orally assess a fine during its oral pronouncement of Mitchell’s

sentence, but the written judgment adjudicating guilt includes the fine. Although

the trial court included a “Not Suspended” $300 fine in the order of deferred


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adjudication, the judgment adjudicating Mitchell’s guilt set aside the prior

deferred order, including the fine. See Taylor v. State, 131 S.W.3d 497, 499–500

(Tex. Crim. App. 2004).     Of course, the trial court’s oral pronouncement of

sentence controls over its written judgment to the extent they conflict. Id. at 502.

Accordingly, because the trial court did not include a fine in its oral

pronouncement of sentence at Mitchell’s revocation hearing, we modify the trial

court’s judgment adjudicating guilt to delete the $190.99 fine, which must also be

removed from the incorporated order to withdraw funds from Mitchell’s inmate

trust account. See id.; Bowie v. State, No. 02-16-00379-CR, 2017 WL 2806320,

at *3 (Tex. App.—Fort Worth June 29, 2017, no pet.) (mem. op., not designated

for publication); Cox v. State, No. 02-13-00596-CR, 2015 WL 831544, *1 (Tex.

App.—Fort Worth Feb. 26, 2015, no pet.) (mem. op., not designated for

publication).

      Except for this modification to the judgment, we agree with counsel that

this appeal is wholly frivolous and without merit. Our independent review of the

record reveals nothing further that might arguably support the appeal.         See

Bledsoe v. State, 178 S.W.3d 824, 827–28 (Tex. Crim. App. 2005); see also

Meza v. State, 206 S.W.3d 684, 685 n.6 (Tex. Crim. App. 2006). Accordingly, we

grant counsel’s motion to withdraw, modify the trial court’s judgment and

incorporated order to withdraw funds to delete the fine, and affirm the judgment

as modified. See Bray v. State, 179 S.W.3d 725, 726 (Tex. App.—Fort Worth




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2005, no pet.) (en banc) (modifying judgment in Anders appeal and affirming

judgment as modified).


                                              /s/ Lee Gabriel

                                              LEE GABRIEL
                                              JUSTICE

PANEL: SUDDERTH, C.J.; GABRIEL and KERR, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: December 28, 2017




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