Opinion issued December 19, 2013
In The
Court of Appeals
For The
First District of Texas
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NO. 01-13-00029-CR
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MANUEL MACARIO MORALES, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 178th District Court
Harris County, Texas
Trial Court Cause No. 1314289
MEMORANDUM OPINION
Appellant, Manuel Macario Morales, pleaded guilty, with an agreed
recommendation from the State, to the offense of evading arrest or detention. See
TEX. PENAL CODE ANN. § 38.04(b)(1) (West Supp. 2013). In accordance with
appellant’s plea agreement with the State, the trial court found sufficient evidence
to find appellant guilty, but deferred making any finding regarding appellant’s guilt
and placed appellant on community supervision for a period of two years. See
TEX. CODE CRIM. PROC. ANN. art. 42.12 § 5(a) (West Supp. 2013). The State then
filed a motion to adjudicate appellant’s guilt. See id. §§ 5(b), 21(e). Appellant
pleaded true to all alleged violations of the terms of his community supervision.
After a hearing, the trial court found five alleged violations not true and four
alleged violations true, adjudicated appellant guilty, and sentenced appellant to
eighteen months in state jail and a fine of $300.00. See id. §§ 5(b), 21(b-2), 23.
Appellant timely filed a notice of appeal.
Appellant’s appointed counsel on appeal has filed a motion to withdraw,
along with a brief stating that the record presents no reversible error and the appeal
is without merit and is frivolous. See Anders v. California, 386 U.S. 738, 87 S. Ct.
1396 (1967).
Counsel’s brief meets the Anders requirements by presenting a professional
evaluation of the record and supplying us with references to the record and legal
authority. 386 U.S. at 744, 87 S. Ct. at 1400; see also High v. State, 573 S.W.2d
807, 812 (Tex. Crim. App. 1978). Counsel indicates that he has thoroughly
reviewed the record and is unable to advance any grounds of error that warrant
reversal. See Anders, 386 U.S. at 744, 87 S. Ct. at 1400; Mitchell v. State, 193
S.W.3d 153, 155 (Tex. App.—Houston [1st Dist.] 2006, no pet.).
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Counsel has also informed us that he delivered a copy of the brief to
appellant and informed him of his right to examine the appellate record and to file
a response. See In re Schulman, 252 S.W.3d 403, 408 (Tex. Crim. App. 2008).
Appellant has not filed a pro se response.
We have independently reviewed the entire record in this appeal, and we
conclude that no reversible error exists in the record, there are no arguable grounds
for review, and the appeal is frivolous. See Anders, 386 U.S. at 744, 87 S. Ct. at
1400 (emphasizing that reviewing court—and not counsel—determines, after full
examination of proceedings, whether appeal is wholly frivolous); Garner v. State,
300 S.W.3d 763, 767 (Tex. Crim. App. 2009) (reviewing court must determine
whether arguable grounds for review exist); Bledsoe v. State, 178 S.W.3d 824,
826–27 (Tex. Crim. App. 2005) (same); Mitchell, 193 S.W.3d at 155 (same).
Appellant may challenge a holding that there are no arguable grounds for appeal by
filing a petition for discretionary review in the Texas Court of Criminal Appeals.
See Bledsoe, 178 S.W.3d at 827 & n.6.
We note that the trial court’s judgment includes a $300.00 fine. The record
shows, however, that the fine was not part of the trial court’s oral pronouncement
of appellant’s sentence. “[W]hen there is a variation between the oral
pronouncement of sentence and the written memorialization of the sentence, the
oral pronouncement controls.” Coffey v. State, 979 S.W.2d 326, 328 (Tex. Crim.
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App. 1998); see also Taylor v. State, 131 S.W.3d 497, 500 (Tex. Crim. App. 2004).
An appellate court that has the necessary information before it may correct a trial
court’s written judgment, including a judgment adjudicating guilt after revocation
of deferred adjudication community supervision, to reflect the oral pronouncement.
See Taylor, 131 S.W.3d at 500–02; see also Smith v. State, No. 02-11-00295-CR,
2012 WL 2036467, at *2 (Tex. App.—Fort Worth June 7, 2012, no pet.) (in
Anders appeal, modifying judgment adjudicating guilt after revocation of deferred
adjudication community supervision so that it conformed with trial court’s oral
pronouncement).
Accordingly, we modify the trial court’s judgment to delete the imposition
of a $300.00 fine. We affirm the judgment of the trial court as modified and grant
counsel’s motion to withdraw.1 Attorney Franklin G. Bynum must immediately
send appellant the required notice and file a copy of the notice with the Clerk of
this Court. See TEX. R. APP. P. 6.5(c).
PER CURIAM
Panel consists of Justices Keyes, Higley, and Massengale.
Do not publish. TEX. R. APP. P. 47.2(b).
1
Appointed counsel still has a duty to inform appellant of the result of this appeal
and that he may, on his own, pursue discretionary review in the Texas Court of
Criminal Appeals. See Ex Parte Wilson, 956 S.W.2d 25, 27 (Tex. Crim. App.
1997).
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