                       COURT OF APPEALS
                        SECOND DISTRICT OF TEXAS
                             FORT WORTH

                            NO. 02-10-00033-CR


SAMUEL WELL TOLER, JR.                                        APPELLANT

                                     V.

THE STATE OF TEXAS                                                 STATE


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         FROM THE 355TH DISTRICT COURT OF HOOD COUNTY

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                       MEMORANDUM OPINION1
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     A jury convicted Appellant Samuel Well Toler, Jr. of possession of a

controlled substance—heroin—over one gram but less than four grams and

assessed his punishment at seven years’ confinement and a $5,000 fine. The




     1
      See Tex. R. App. P. 47.4.
trial court sentenced him accordingly. The trial court’s written judgment also

includes restitution in the amount of $140.

      Toler’s court-appointed appellate counsel has filed a motion to withdraw as

counsel and a brief in support of that motion. Counsel’s brief and motion meet

the requirements of Anders v. California2 by presenting a professional evaluation

of the record demonstrating why there are no arguable grounds for relief. This

court afforded Toler the opportunity to file a brief on his own behalf, but he did

not do so.

      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).

      We have carefully reviewed the record and counsel’s brief. The record

shows that the trial court did not include restitution in its oral pronouncement of

Toler’s sentence at trial. Yet the trial court=s written judgment includes restitution

in the amount of $140.



      2
       386 U.S. 738, 87 S. Ct. 1396 (1967).

                                          2
      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(a) (Vernon Supp. 2010) (providing that Asentence 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).

      Restitution is punishment. Weir v. State, 278 S.W.3d 364, 366 (Tex. Crim.

App. 2009); Ex parte Cavazos, 203 S.W.3d 333, 338 (Tex. Crim. App. 2006)

(orig. proceeding). Therefore, it must be included in the oral pronouncement of

sentence to be valid.     Sauceda v. State, 309 S.W.3d 767, 769 (Tex. App.—

Amarillo 2010, pet. ref’d); Alexander v. State, 301 S.W.3d 361, 364 (Tex. App.—

Fort Worth 2009, no pet.); 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 publication).

      Because the trial court did not include restitution in its oral pronouncement

of Toler’s sentence, the court could not assess restitution in its written judgment.

See Sauceda, 309 S.W.3d at 769; Alexander, 301 S.W.3d at 364; Brown, 2009

WL 1905231, at *2. We therefore reform the trial court=s judgment to delete the

                                         3
language regarding the payment of restitution. 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).

      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.




                                                   PER CURIAM


PANEL: WALKER, MEIER, and GABRIEL, JJ.

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

DELIVERED: December 23, 2010




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