                                       In The

                                Court of Appeals
                    Ninth District of Texas at Beaumont
                            ____________________
                               NO. 09-13-00212-CR
                            ____________________


                    GARY LACHOTY MOORE, Appellant

                                         V.

                       THE STATE OF TEXAS, Appellee

_______________________________________________________              ______________

                   On Appeal from the 252nd District Court
                          Jefferson County, Texas
                         Trial Cause No. 07-00560
________________________________________________________              _____________

                          MEMORANDUM OPINION
      In this appeal, counsel for the appellant filed a brief stating that there are no

arguable points of error that would allow the appellant, Gary Lachoty Moore, to

obtain relief from his conviction. After reviewing the record, we conclude that no

arguable issues support Moore’s appeal. See Anders v. California, 386 U.S. 738,

744 (1967).



                                          1
      In carrying out a plea bargain agreement, Moore pled guilty to felony theft.

See Tex. Penal Code Ann. § 31.03 (West Supp. 2013). 1 Under the terms of

Moore’s plea agreement, the trial court deferred the adjudication of Moore’s guilt,

placed Moore on community supervision for ten years, and assessed a fine of

$1,500.

      Subsequently, by motion, the State asked the trial court to revoke its

community supervision order and to find Moore guilty of felony theft. After a

hearing, the trial court found that Moore violated two of the terms of its deferred

adjudication order, found that Moore was guilty of felony theft, and the trial court

then sentenced Moore to nineteen years in prison.

      On appeal, Moore’s counsel filed a brief presenting counsel’s professional

evaluation of the record; in the brief, Moore’s counsel concludes that Moore’s

appeal is frivolous. See Anders, 386 U.S. at 744; High v. State, 573 S.W.2d 807

(Tex. Crim. App. 1978). We granted an extension of time to allow Moore to file a

pro se brief. Moore filed a pro se brief in response.

      After reviewing the appellate record, we agree with counsel’s conclusion

that no arguable issues support Moore’s appeal. Consequently, we need not order



      1
       We cite to the current version of the statute as the subsequent amendments
do not affect the outcome of this appeal.
                                          2
the appointment of new counsel to re-brief Moore’s appeal. Cf. Stafford v. State,

813 S.W.2d 503, 511 (Tex. Crim. App. 1991).

      However, the State points out the trial court’s judgment contains a clerical

error, noting that page two of the judgment appears to order the payment of a fine

even though the trial court did not orally pronounce a fine when it imposed

Moore’s sentence. The transcript from the sentencing portion of Moore’s hearing

does not reflect the trial court pronounced a fine when it assessed Moore’s

sentence of nineteen years in prison.

      Page one of the judgment reflects that Moore was sentenced to nineteen

years in prison and that he was assessed $712 in administrative fees and $610 in

court costs. However, the second page of the judgment contains a section reciting

what the trial court ordered when it placed Moore on community supervision; in

that part of the judgment, the judgment states that the “Court assessed a fine of

$1,500.00[.]” Then, in a section of the judgment that appears after the trial court

grants the State’s motion to adjudicate guilt, the judgment states: “The Court

ORDERS Defendant punished as indicated above. The Court ORDERS

Defendant to pay all fines, court costs, and restitution as indicated above.”

      The order stating the defendant is to pay a fine “indicated above” creates an

ambiguity regarding whether the trial court’s final judgment includes a fine;

                                          3
nevertheless, construing the language as including a fine appears to be a proper

construction of the judgment. The State agrees the judgment includes a fine.

      A fine must be orally pronounced during sentencing for the fine to be

included as an enforceable provision in the judgment. See Coffey v. State, 979

S.W.2d 326, 328 (Tex. Crim. App. 1998) (“[W]hen there is a variation between the

oral pronouncement of sentence and the written memorialization of the sentence,

the oral pronouncement controls.”). Because the trial court did not orally

pronounce a fine when it sentenced Moore, the fine should not have been included

in the final written judgment. Because the fine is not enforceable, it must be

deleted from the judgment. See Taylor v. State, 131 S.W.3d 497, 502 (Tex. Crim.

App. 2004).

      Because the trial court failed to orally pronounce a fine at the sentencing

hearing, we order the language in the written judgment stating that the defendant

was required to pay “all fines” or stating that the defendant was required to pay

“any remaining unpaid fines[]” to be deleted. We amend the language on the

second page of the written judgment ordering the defendant to pay “all fines” to

read: “The Court ORDERS Defendant to pay all court costs and restitution as

indicated above.” We also amend the language on the second page of the written

judgment ordering the defendant to pay “any remaining unpaid fines[]” to read:

                                         4
“Once there, the Court ORDERS Defendant to pay, or make arrangements to pay,

any remaining court costs and restitution as ordered by the Court above.”

      Nevertheless, the clerical errors we have ordered corrected do not raise

arguable issues concerning Moore’s guilt or his sentence of nineteen years in

prison. Because Moore cannot raise arguable issues supporting an appeal with

respect to his guilt or his prison sentence, we affirm the trial court’s judgment, as

modified. 2

      AFFIRMED AS MODIFIED.




                                                    _________________________
                                                          HOLLIS HORTON
                                                              Justice

Submitted on November 27, 2013
Opinion Delivered January 22, 2014
Do Not Publish

Before McKeithen, C.J., Kreger, and Horton, JJ.




      2
        Moore may challenge our decision in this case by filing a petition for
discretionary review. See Tex. R. App. P. 68.
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