COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-14-00147-CR
KEVIN WADE NOONKESTER APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM THE 355TH DISTRICT COURT OF HOOD COUNTY
TRIAL COURT NO. CR10809
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MEMORANDUM OPINION1
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Appellant Kevin Wade Noonkester appeals the trial court’s judgment
adjudicating him guilty of sexual assault of a child and sentencing him to fifteen
years’ confinement. See Tex. Penal Code Ann. §§ 12.33(a), 22.011 (West
2011).
1
See Tex. R. App. P. 47.4.
Noonkester’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. California by presenting a
professional evaluation of the record demonstrating why there are no arguable
grounds for relief. 386 U.S. 738, 87 S. Ct. 1396 (1967). Noonkester filed a
motion contesting his appointed counsel’s motion to withdraw and requesting
appointment of new counsel to assist him; he subsequently filed a pro se brief.
The State did not file a brief.
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, 922–23 (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, counsel’s brief, and Noonkester’s
pro se brief and have determined that the trial court’s judgment requires
correction with regard to (1) the list of allegations to which Noonkester pled true
during the revocation hearing and found true by the trial court; (2) the
assessment of a $1,500 fine in the judgment adjudicating guilt; (3) the
assessment of $400 in appointed counsel fees as part of the $915 in court costs
in the judgment; (4) the listing of $3,000 as a fine in the bill of costs; and (5) the
listing of $2,415 as costs in the order to withdraw funds from Noonkester’s
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inmate trust account. We may modify the judgment in an Anders appeal and
affirm the judgment as modified. Bray v. State, 179 S.W.3d 725, 726 (Tex.
App.—Fort Worth 2005, no pet.) (en banc).
At the revocation hearing, Noonkester pled “true” to the allegations set out
in paragraphs A, B, E, G, H, I, and J of the State’s motion and “not true” to
paragraphs C, D, and F.2 Therefore, the trial court’s judgment adjudicating guilt,
which reflects that Noonkester generally pled “true” to the motion to adjudicate, is
incomplete as to the specific allegations to which Noonkester pled true. We
reform the trial court’s judgment to reflect that Noonkester pled “true” to the
allegations set out in paragraphs A, B, E, G, H, I, and J of the State’s motion and
“not true” to the allegations set out in paragraphs C, D, and F.
Additionally, at the revocation hearing, the trial court found true the
allegations set out in the State’s paragraphs A, B, C, D, E, G, H, I, and J.
However, the judgment adjudicating guilt reflects that the trial court found all of
the allegations, including paragraph F, true. Further, the trial court did not
2
In his single pro se point, Noonkester contends that the evidence is
insufficient to show that he violated the conditions of his community supervision.
However, Noonkester pled true to several of the State’s allegations in its motion
to revoke his community supervision, see Cole v. State, 578 S.W.2d 127, 128
(Tex. Crim. App. 1979) (“This Court has previously held that the sufficiency of the
evidence could not be challenged in the face of a plea of true.”), and there is
evidence in the record to support the State’s allegations. Proof by a
preponderance of the evidence of any one of the alleged violations of the
conditions of community supervision is sufficient to support a revocation order.
Hacker v. State, 389 S.W.3d 860, 864–65 (Tex. Crim. App. 2013); Moore v.
State, 605 S.W.2d 924, 926 (Tex. Crim. App. [Panel Op.] 1980).
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assess a fine during its oral pronouncement of Noonkester’s sentence, but the
judgment adjudicating guilt includes a $1,500 fine, and the June 25, 2014 bill of
costs prepared by the Hood County District Clerk reflects that Noonkester was
charged $3,000 in “Criminal Fines.”3
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. Taylor v. State, 131
S.W.3d 497, 501–02 (Tex. Crim. App. 2004) (reasoning that appellant was not
sentenced until his guilt was adjudicated and that the trial court was required to
orally pronounce fine during sentencing); see also Armstrong v. State, 340
S.W.3d 759, 767 (Tex. Crim. App. 2011) (noting that fines are punitive). And
when the oral pronouncement of sentence and the written judgment vary, the oral
pronouncement controls. Taylor, 131 S.W.3d at 500, 502. An appellate court
may correct a trial court’s written judgment so that it conforms to the oral
pronouncement of the findings supporting revocation and adjudication. See id.;
Smith v. State, 290 S.W.3d 368, 377 (Tex. App.—Houston [14th Dist.] 2009, pet.
ref’d); see also Tex. R. App. P. 43.2(b). We reform the trial court’s judgment by
deleting paragraph F from the list of violations found true by the trial court, and
3
The original order of deferred adjudication reflected that Noonkester pled
guilty in exchange for an assessment of a $1,500 fine and court costs; eight
years’ deferred adjudication community supervision; 500 hours of community
service; and other terms and conditions. The trial court’s order of deferred
adjudication mirrored the plea bargain agreement and specified that the fine was
not suspended and that Noonkester owed $450 in court costs.
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because the trial court did not include the fine previously assessed in its order
deferring adjudication in its oral pronouncement of sentence at the revocation
hearing, we reform the judgment adjudicating guilt to delete the $1,500 fine, and
we delete the $3,000 fine listed in the bill of costs. See Taylor, 131 S.W.3d at
502; see also Washington v. State, No. 02-11-00152-CR, 2012 WL 1345743, at
*1–2 (Tex. App.—Fort Worth Apr. 19, 2012, no pet.) (mem. op., not designated
for publication) (reforming judgment adjudicating guilt to delete language
regarding payment of the portion of reparations made up of fines that had been
previously assessed in the order deferring adjudication and that had not been
included in the trial court’s oral pronouncement of sentence); Boyd v. State, No.
02-11-00035-CR, 2012 WL 1345751, at *1–2 (Tex. App.—Fort Worth Apr. 19,
2012, no pet.) (mem. op., not designated for publication) (same).
The clerk’s bill of costs also reflects that Noonkester was charged $400 for
a court-appointed attorney. For purposes of assessing attorney’s fees, once an
accused is found to be indigent, he is presumed to remain so throughout the
proceedings absent proof of a material change in his circumstances. See Tex.
Code Crim. Proc. Ann. art. 26.04(p) (West Supp. 2014); Wiley v. State, 410
S.W.3d 313, 317 (Tex. Crim. App. 2013); Mayer v. State, 309 S.W.3d 552, 557
(Tex. Crim. App. 2010). Furthermore, the record must reflect some factual basis
to support the determination that the appellant was capable of paying all or some
of his attorney’s fees at the time of the judgment. See Tex. Code Crim. Proc.
Ann. art. 26.05(g) (West Supp. 2014); Wiley, 410 S.W.3d at 317 (“[I]n the
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absence of any indication in the record that [an indigent defendant’s] financial
status has in fact changed, the evidence will not support an imposition of attorney
fees.”). When the record does not contain a factual basis to support imposition of
attorney’s fees, the proper remedy is to delete it. Cates v. State, 402 S.W.3d
250, 251–52 (Tex. Crim. App. 2013).
Noonkester applied for appointed counsel before the revocation hearing
and attached a declaration of financial inability to employ counsel in which he
listed no assets or income. The trial court entered an order appointing counsel
for Noonkester, and at the revocation hearing, Noonkester testified that he was
not financially stable, and his mother testified that he did not have the financial
ability to pay large sums of money. The trial court subsequently entered another
order appointing counsel for Noonkester for this appeal after finding him indigent.
Because the record does not contain a factual basis to support the imposition of
$400 in attorney’s fees in the clerk’s bill of costs, we delete this amount and order
the clerk to recalculate Noonkester’s total bill of costs less the $3,000 fine and
the $400 charge for attorney’s fees.
The trial court’s order to withdraw funds from Noonkester’s inmate trust
account, incorporated by reference into the judgment, listed $2,415 as the
amount of “court costs, fees and/or fines and/or restitution” incurred by
Noonkester. However, as set out above, because we have modified the
judgment to delete the $1,500 fine and $400 of the court costs, we reform the
withdrawal order to reflect $515 instead of $2,415.
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Except for these necessary modifications to the judgment, we agree with
counsel that this appeal is wholly frivolous and without merit; we find nothing else
in the record that might arguably support the appeal. See Bledsoe v. State, 178
S.W.3d 824, 827–28 (Tex. Crim. App. 2005); see also Meza v. State, 206 S.W.3d
684, 685 n.6 (Tex. Crim. App. 2006). Accordingly, we deny Noonkester’s motion
for appointment of new counsel, grant counsel’s motion to withdraw, and affirm
the trial court’s judgment as modified.
/s/ Anne Gardner
ANNE GARDNER
JUSTICE
PANEL: LIVINGSTON, C.J.; GARDNER and GABRIEL, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: February 26, 2015
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