                        COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                             NO. 02-15-00379-CR


BRANDON WAYNE RUSSELL                                               APPELLANT

                                       V.

THE STATE OF TEXAS                                                       STATE


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          FROM THE 355TH DISTRICT COURT OF HOOD COUNTY
                     TRIAL COURT NO. CR12391

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                        MEMORANDUM OPINION1

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      Appellant Brandon Wayne Russell appeals the trial court’s judgment

adjudicating him guilty of sexual assault of a child and sentencing him to twenty

years’ confinement.   See Tex. Penal Code Ann. §§ 12.33(a), 22.011 (West

2011). We will modify the judgment and the order to withdraw funds attached to




      1
       See Tex. R. App. P. 47.4.
the judgment to delete the fine imposed by the trial court and, as modified, affirm

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

      As part of a plea bargain, Russell pleaded guilty to the offense of sexual

assault of a child, the trial court deferred the adjudication of his guilt, and the trial

court placed him on ten years’ community supervision and ordered him to pay a

$1,500 fine. Approximately two years after the trial court entered its deferred-

adjudication order, the State filed a motion to proceed with adjudication, alleging

that Russell had committed violations of the terms and conditions of his

community supervision. The trial court held a hearing on the State’s motion to

adjudicate, and Russell pleaded true to all of the State’s allegations. The trial

court adjudicated Russell guilty of sexual assault of a child and sentenced him to

twenty years’ confinement. Although the trial court did not include a fine in its

oral pronouncement of Russell’s sentence, its written judgment adjudicating guilt

contains an $893.98 fine. Russell timely filed a notice of appeal from the trial

court’s judgment.

        Russell’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

states that following a careful, diligent, and thorough examination of the appellate

record and relevant law, he could find no error warranting reversal. Counsel

contends, however, that the fine imposed was improper and that the judgment

should be modified to delete the fine.         Counsel’s brief and motion meet the

requirements of Anders v. California by presenting a professional evaluation of


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the record demonstrating why there are no arguable grounds for appeal but for

the requested modification of the judgment. See 386 U.S. 738, 87 S. Ct. 1396

(1967); Boone v. State, No. 02-15-00417-CR, 2016 WL 4040563, at *2 (Tex.

App.—Fort Worth July 28, 2016, no pet. h.) (mem. op., not designated for

publication) (“We may modify the judgment in an Anders appeal and affirm the

judgment as modified.”).

       In compliance with Kelly v. State, counsel notified Russell of his motion to

withdraw, provided him a copy of the brief, informed him of his right to file a pro

se response, informed him of his pro se right to seek discretionary review should

this court hold the appeal is frivolous, and took concrete measures to facilitate

Russell’s review of the appellate record. See 436 S.W.3d 313, 319 (Tex. Crim.

App. 2014). This court afforded Russell the opportunity to file a response on his

own behalf, but he did not do so. The State filed a letter brief in which it agreed

that the fine should be deleted from the judgment. The State also averred that,

but for the fine, there are no arguable grounds for relief and that Russell’s appeal

is frivolous.

       As the reviewing court, we must conduct an independent evaluation of the

record to determine whether counsel is correct in determining that the appeal is

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

Mays v. State, 904 S.W.2d 920, 923 (Tex. App.—Fort Worth 1995, no pet.). 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).


                                         3
      We have carefully reviewed the record, counsel’s brief, and the State’s

letter brief, and we have determined that the trial court’s judgment requires

correction with regard to the assessment of the $893.98 fine that appears in the

trial court’s written judgment adjudicating guilt and the order to withdraw funds

from Russell’s inmate trust account, which was attached to and incorporated into

the written judgment. We may modify the judgment in an Anders case and affirm

the judgment as modified. Boone, 2016 WL 4040563, at *2; Bray v. State, 179

S.W.3d 725, 726 (Tex. App.—Fort Worth 2005, no pet.) (en banc).

      The trial court did not assess a fine during its oral pronouncement of

Russell’s sentence, but the written judgment adjudicating guilt includes an

$893.98 fine, and that fine is reflected in the order to withdraw funds from

Russell’s inmate trust account.2 When guilt is adjudicated upon a violation of a

condition of community supervision, the order adjudicating guilt sets aside the

order deferring adjudication, including any previously imposed fines.    Boone,

2016 WL 4040563, at *2 (citing Taylor v. State, 131 S.W.3d 497, 502 (Tex. Crim.

App. 2004)). And when the oral pronouncement of sentence and the written

judgment vary, the oral pronouncement controls. Taylor, 131 S.W.3d at 502;

Boone, 2016 WL 4040563, at *2.



      2
       The judgment reflects a fine totaling $893.98, as well as court costs of
$354.02, for a total of $1,248. The order to withdraw funds references “[c]ourt
costs, fees and/or fines and/or restitution have been incurred in the amount of
$1248.00.”


                                       4
      Although the trial court included a fine in the order of deferred adjudication,

the subsequent judgment adjudicating Russell’s guilt set aside that order.

Boone, 2016 WL 4040563, at *2 (citing Alexander v. State, 301 S.W.3d 361, 363

(Tex. App.—Fort Worth 2009, no pet.)). Accordingly, because the trial court did

not include a fine in its oral pronouncement of sentence at Russell’s revocation

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

$893.98 fine; the sum of $893.98 must also be removed from the order to

withdraw funds from Russell’s inmate trust account.3 See Taylor, 131 S.W.3d at

502; Boone, 2016 WL 4040563, at *2; Alexander, 301 S.W.3d at 363.

      Except for these necessary modifications to the judgment, we agree with

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

                                                    /s/ Sue Walker
                                                    SUE WALKER
                                                    JUSTICE

PANEL: GARDNER, WALKER, and MEIER, JJ.

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

DELIVERED: August 26, 2016


      3
       The pertinent section of that order should now read: “Court costs, fees
and/or fines and/or restitution have been incurred in the amount of $354.02.”


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