             In the
        Court of Appeals
Second Appellate District of Texas
         at Fort Worth
     ___________________________

          No. 02-18-00142-CR
     ___________________________

    JACOB TRISTAN GRAY, Appellant

                     V.

          THE STATE OF TEXAS


On Appeal from Criminal District Court No. 1
           Tarrant County, Texas
        Trial Court No. 1486915D


   Before Gabriel, Birdwell, and Bassel, JJ.
  Memorandum Opinion by Justice Gabriel
                            MEMORANDUM OPINION

         Appellant Jacob Tristan Gray appeals from the trial court’s judgment revoking

his community supervision, adjudicating his guilt for the third-degree felony of

assault, and sentencing him to five years’ confinement with a $28.94 fine. We modify

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

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

         Gray was indicted for the assault of a family member by impeding her

breathing. See Tex. Penal Code Ann. § 22.01(a), (b)(2)(B). On March 17, 2017, under

the terms of a plea-bargain agreement, Gray pleaded guilty to the offense, and the trial

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

two years, which followed the parties’ agreement. The trial court also imposed a $200

fine, which was an additional term of the plea-bargain agreement. The conditions

initially imposed on Gray’s community supervision were supplemented and amended

twice.

         During the period of Gray’s community supervision, the State filed a petition

to proceed to a hearing to determine if Gray’s community supervision should be

revoked and his guilt adjudicated. The State alleged that Gray had violated five

conditions: (1) committed three new offenses, (2) failed to report to his community-

supervision officer four times, (3) did not successfully complete a batterer’s

intervention and prevention program, (4) did not complete a supportive outpatient

program, and (5) failed to pay the monthly supervision fee three times. At the trial

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court’s hearing on the State’s petition to adjudicate, Gray pleaded true to the State’s

remaining allegations after the State waived its allegation regarding the outpatient

program as agreed. The trial court found the State’s allegations true and heard

evidence regarding the appropriate disposition of the State’s petition—a continuation

of community supervision or confinement. The trial court adjudged Gray guilty of

the underlying offense and sentenced him to five years’ confinement.              In the

judgment adjudicating Gray’s guilt, the trial court imposed a fine of $28.94 apparently

based on a calculation of Gray’s “Fines Remaining.”

      Gray timely filed a notice of appeal from the trial court’s judgment. See Tex. R.

App. P. 26.2(a). Gray’s court-appointed appellate counsel has filed a motion to

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

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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

the $28.94 fine that appears in the trial court’s written judgment adjudicating guilt and

the order to withdraw funds from Gray’s inmate trust account. The trial court did not

orally assess a fine during its pronouncement of Gray’s sentence, but the written

judgment adjudicating guilt includes the fine. Although the trial court included a $200

fine in the order of deferred adjudication, the judgment adjudicating Gray’s guilt set

aside the prior deferred order, including the fine. See Taylor v. State, 131 S.W.3d 497,

502 (Tex. Crim. App. 2004). But the trial court’s oral pronouncement of sentence

controls over its written judgment to the extent they conflict. Id. Accordingly,

because the trial court did not include a fine in its oral pronouncement of sentence at

Gray’s revocation hearing, we modify the trial court’s judgment adjudicating guilt to

delete the $28.94 fine, which must also be deducted from the incorporated order to

withdraw funds from Gray’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



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WL 831544, at *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 2005, no pet.) (en banc) (modifying judgment in Anders

appeal and affirming judgment as modified).




                                                      /s/ Lee Gabriel
                                                      Lee Gabriel
                                                      Justice

Do Not Publish
Tex. R. App. P. 47.2(b)

Delivered: February 28, 2019




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