                        COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                             NO. 02-11-00152-CR


CHRIS LEON WASHINGTON                                              APPELLANT

                                       V.

THE STATE OF TEXAS                                                      STATE


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          FROM THE 432ND DISTRICT COURT OF TARRANT COUNTY

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                        MEMORANDUM OPINION1

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      Appellant Chris Leon Washington pled guilty to indecency with a child, and

the trial court assessed a $500.00 fine and placed him on five years’ deferred

adjudication community supervision.    The State filed a petition to adjudicate,

alleging that Appellant had violated conditions of his community supervision.

Appellant pled “true” to the State’s allegations, and the trial court found the

allegations true, adjudicated Appellant guilty, and sentenced him to ten years’
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      See Tex. R. App. P. 47.4.
confinement. The trial court’s written judgment includes an order that Appellant

pay $1,210.00 in “reparations.” Appellant appeals the adjudication and sentence.

       Appellant’s court-appointed appellate counsel has filed a motion to

withdraw 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 by presenting a

professional evaluation of the record demonstrating why there are no reversible

grounds on appeal and referring to any grounds that might arguably support the

appeal. 386 U.S. 738, 87 S. Ct. 1396 (1967); see Mays v. State, 904 S.W.2d

920, 922–23 (Tex. App.––Fort Worth 1995, no pet.). This court gave Appellant

the opportunity to file a brief on his own behalf, but he did not do so. Also, the

State did not file a brief.

       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 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 Appellant’s guilt, it did not include in its

oral pronouncement of sentence any mention of the fine it had previously ordered

when it originally placed Appellant on deferred adjudication. Yet the trial court’s


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written judgment adjudicating guilt includes an order that he pay $1,210.00 in

“reparations.”   The clerk’s record contains the trial court’s itemization of the

reparations. It indicates that $499.00 of the $1,210.00 the judgment lists as

reparations is for “fines remaining.”

      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 (West. Supp. 2011) (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

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.


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42.12, § 5(a) (West Supp. 2011); 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, but the trial court did not orally pronounce a fine when

adjudicating the appellant guilty. Id. On appeal, the Dallas Court of Appeals

modified the judgment upon adjudication of guilt to delete the fine because it was

not orally pronounced as part of the defendant’s sentence. Id.

      In Alexander, the order deferring adjudication included that the defendant

pay $10,871.25 in restitution as a condition of community supervision.          301

S.W.3d 361, 362 (Tex. App.––Fort Worth, no pet.).            The trial court later

adjudicated Alexander’s guilt but did not include a restitution order in its oral

pronouncement of sentence. Id. at 363. This court then held that because the

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

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

included in the trial court’s oral pronouncement of sentence. Id. at 364 (citing

Taylor, 131 S.W.3d at 502; Abron, 997 S.W.2d at 282). Because the trial court

did not order payment of unpaid restitution in its oral pronouncement of sentence,




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this court modified the judgment to delete the language regarding the payment of

restitution. Id.

       Similarly, here, because a portion of the requirement that Appellant pay

$1,210.00 is made up of a previously assessed fine, that portion is punishment

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

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

included in the written judgment. See id.; see also 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 the portion of reparations that is made up

of a previously assessed fine. 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).      According to the trial court’s itemization of the

reparations that is part of the clerk’s record, the amount of the previously

assessed fine included in the total reparations is $499.00. Because only fines

and restitution need to be orally pronounced to be included in the judgment, and

the remainder of the reparations on the judgment is neither, we affirm $711.00 in

reparations and modify the judgment to delete $499.00 from the reparations

listed on the judgment.   See Abron, 997 S.W.2d at 282; see also Ex parte

Cavazos, 203 S.W.3d 333, 338 (Tex. Crim. App. 2006) (holding that restitution is

punishment); Brown v. State, No. 02–08–00063–CR, 2009 WL 1905231, at *2

(Tex. App.––Fort Worth July 2, 2009, no pet) (mem. op., not designated for


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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). 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.




                                                   LEE GABRIEL
                                                   JUSTICE

PANEL: GARDNER, WALKER, and GABRIEL, JJ.

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

DELIVERED: April 19, 2012




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