In The
Court of Appeals
Ninth District of Texas at Beaumont
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NO. 09-13-00561-CR
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ERIC JOSEPH SCOTT, Appellant
V.
THE STATE OF TEXAS, Appellee
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On Appeal from the 252nd District Court
Jefferson County, Texas
Trial Cause No. 10-09702
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MEMORANDUM OPINION
Pursuant to a plea bargain agreement, appellant Eric Joseph Scott pled guilty
to burglary of a habitation, a second degree felony. See Tex. Penal Code Ann. §
30.02(a)(1), (c)(2) (West 2011). The trial court found the evidence sufficient to
find Scott guilty of burglary of a habitation, but deferred further proceedings,
placed Scott on community supervision for seven years, and ordered Scott to pay a
fine of $750. Thereafter, the State filed a motion to revoke Scott’s unadjudicated
community supervision. During the revocation hearing, Scott pled “true” to five
violations of the conditions of his community supervision. The trial court found
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the evidence sufficient to establish that Scott violated the conditions of his
community supervision, revoked his community supervision, found him guilty of
the offense of burglary of a habitation, and sentenced him to twelve years in
prison. Scott timely filed a notice of appeal.
Scott’s appellate counsel filed an Anders brief. See Anders v. California,
386 U.S. 738 (1967); High v. State, 573 S.W.2d 807 (Tex. Crim. App. 1978).
Counsel’s brief presents his professional evaluation of the record and concludes
there are no arguable grounds to be advanced in this appeal. Counsel provided
Scott with a copy of this brief. We granted an extension of time for Scott to file a
pro se brief. In response, Scott filed a hand-written letter raising one appellate
issue and a motion requesting appointment of new appellate counsel.
The Court of Criminal Appeals has held that we need not address the merits
of issues raised in Anders briefs or pro se responses. Bledsoe v. State, 178 S.W.3d
824, 826-27 (Tex. Crim. App. 2005). We may determine either: (1) “that the
appeal is wholly frivolous and issue an opinion explaining that it has reviewed the
record and finds no reversible error”; or (2) “that arguable grounds for appeal exist
and remand the cause to the trial court so that new counsel may be appointed to
brief the issues.” Id. We have carefully reviewed the clerk’s record and the
reporter’s record in this appeal, and we agree with counsel’s conclusion that no
arguable issues support the appeal.
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We note, however, that the record reflects that after the trial court
adjudicated Scott’s guilt, it did not include a restitution award in its oral
pronouncement of Scott’s sentence. The trial court’s written judgment adjudicating
Scott’s guilt, however, includes a restitution award in the amount of $2,216.
Restitution is considered to be an aspect of punishment and is part of the
defendant’s sentence. Sauceda v. State, 309 S.W.3d 767, 769 (Tex. App.—
Amarillo 2010, pet. ref’d); see Ex parte Cavazos, 203 S.W.3d 333, 338 (Tex. Crim.
App. 2006). It is well-established that a trial court must orally pronounce a
defendant’s sentence in the defendant’s presence. See Tex. Code Crim. Proc. Ann.
art. 42.03, § 1(a) (West Supp. 2013); Taylor v. State, 131 S.W.3d 497, 500 (Tex.
Crim. App. 2004). The judgment, including the sentence assessed, is merely the
written declaration and embodiment of the trial court’s oral pronouncement. See
Taylor, 131 S.W.3d at 500. When there is a conflict between the oral
pronouncement of the sentence and the written judgment, the oral pronouncement
controls. Id. The State concedes error and clarifies that such was only a clerical
error to include that amount as restitution, instead of administrative fees. Because
the trial court did not orally pronounce the restitution award when it sentenced
Scott, the clerk erred by including a restitution award in the final written judgment.
See id. at 502; see also Alexander v. State, 301 S.W.3d 361, 364 (Tex. App.—Fort
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Worth 2009, no pet.). Therefore, we modify the trial court’s written judgment to
delete the restitution award of $2,216.
After reviewing the appellate record, the Anders brief, and Scott’s pro se
filings, we find no other arguable grounds for appeal. Therefore, we find it
unnecessary to order appointment of new counsel to re-brief Scott’s appeal.
Compare Stafford v. State, 813 S.W.2d 503, 511 (Tex. Crim. App. 1991). We
affirm the judgment of the trial court as modified.1
AFFIRMED AS MODIFIED.
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CHARLES KREGER
Justice
Submitted on July 11, 2014
Opinion Delivered September 3, 2014
Do not publish
Before Kreger, Horton, and Johnson, JJ.
1
Scott may challenge our decision by filing a petition for discretionary
review. See Tex. R. App. P. 68.
4