COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-15-00417-CR
TREY ETHAN BOONE APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM THE 355TH DISTRICT COURT OF HOOD COUNTY
TRIAL COURT NO. CR12670
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MEMORANDUM OPINION1
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Appellant Trey Ethan Boone appeals from the adjudication of his guilt for
aggravated sexual assault of a child, which previously had been deferred, and
from his resulting fifty-year sentence. We modify the judgment and the attached
order to withdraw funds to delete the fine and restitution amounts and, as
modified, affirm the trial court’s judgment. See Tex. R. App. P. 43.2(b).
1
See Tex. R. App. P. 47.4.
Boone was indicted with two counts of aggravated sexual assault of a child
and with two counts of indecency with a child by contact. See Tex. Penal Code
Ann. § 21.11 (West 2011), § 22.021 (West Supp. 2015). As part of a plea
bargain, he pleaded guilty to one count of aggravated sexual assault of a child,
the trial court deferred the adjudication of his guilt, and the trial court’s order of
deferred adjudication reflects that it placed him on ten years’ community
supervision, and that it ordered him to pay a $1,500 fine and $114 in restitution.
The State dismissed the three remaining counts in the indictment.
A little more than a year after the trial court entered its deferred-
adjudication order, the State filed a motion to proceed with an adjudication of
guilt, alleging that Boone had committed thirteen violations of the terms and
conditions of his community supervision. The trial court held a hearing on the
State’s motion to adjudicate, and Boone pleaded true to all thirteen allegations.
Thereafter, the trial court adjudicated Boone guilty of aggravated sexual assault
of a child and sentenced him to fifty years’ confinement. Although the trial court
did not include a fine or order restitution in its oral pronouncement of Boone’s
sentence, its written judgment adjudicating guilt contains a $1,500 fine and order
to pay $74 in restitution. Boone filed a combined motion for new trial and motion
in arrest of judgment, arguing that his sentence was “contrary to the law and the
evidence and [was] excessive.” Tex. R. App. P. 21.3(h), 22.2(c). The trial court
held a hearing and denied the motions. Boone then timely filed a notice of
appeal from the trial court’s judgment.
2
Boone’s court-appointed appellate counsel has filed a motion to withdraw
as counsel, accompanied by a brief in support of that motion. In the brief,
counsel states that following a careful, diligent, and thorough examination of the
appellate record and relevant law, he could find no arguable or meritorious
grounds upon which this appeal could be based. Counsel further states his
professional opinion that the basis of any appeal of this case would be frivolous
in nature. Counsel’s brief and motion meet the requirements of Anders v.
California, 386 U.S. 738, 87 S. Ct. 1396 (1967), by presenting a professional
evaluation of the record demonstrating why there are no arguable grounds for
relief. Counsel certifies that he provided Boone with a copy of his motion to
withdraw, his brief in support, the clerk’s record, and the reporter’s record, and
that he advised Boone of his right to review the record, to file a response, and to
file a petition for discretionary review. We also notified Boone of his right to file a
pro se response. Thereafter, Boone notified us that he intended to file a pro se
response to his counsel’s brief, and he requested a copy of the reporter’s record.
The full appellate record was subsequently provided to him, and we again
notified Boone of the deadline for filing a response to his counsel’s brief.
However, Boone did not file a response. The State notified us that it would not
be filing a response to appellant’s counsel’s motion to withdraw and Anders brief.
Once an appellant’s court-appointed attorney files a motion to withdraw on
the ground that an appeal is frivolous and fulfills the requirements of Anders, we
have an obligation to undertake an independent examination of the record.
3
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.). In this
evaluation, we consider the record and the arguments raised in the Anders brief.
See United States v. Wagner, 158 F.3d 901, 902 (5th Cir. 1998); In re Schulman,
252 S.W.3d 403, 409 (Tex. Crim. App. 2008).
We have carefully reviewed the record and counsel’s brief and have
determined that the trial court’s judgment requires correction with regard to the
assessment of a $1,500 fine and $74 in restitution that appears in the trial court’s
written judgment adjudicating guilt and the order to withdraw funds from Boone’s
inmate trust account, which was incorporated by reference into the written
judgment. 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).
The trial court did not assess a fine or order restitution during its oral
pronouncement of Boone’s sentence, but the written judgment adjudicating guilt
includes a $1,500 fine and $74 restitution order, and the December 9, 2015 bill of
costs prepared by the Hood County District Clerk reflects that Boone still owed
the entire $1,500 fine. 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 or restitution orders.
See Taylor v. State, 131 SW.3d 497, 502 (Tex. Crim. App. 2004) (reasoning that
appellant was not sentenced until his guilt was adjudicated and that the trial court
4
was required to orally pronounce fine during sentencing); Wordlaw v. State, Nos.
02-14-00286-CR, 02-14-00287-CR, 2015 WL 505231, at *1 (Tex. App.—Fort
Worth Feb. 5, 2015, no pet.) (mem. op., not designated for publication) (noting
that written judgment could not include fine or restitution order because neither
were orally pronounced). And when the oral pronouncement of sentence and the
written judgment vary, the oral pronouncement controls. Taylor, 131 S.W.3d at
500, 502.
Although the trial court included fine and restitution amounts in the order of
deferred adjudication, the subsequent judgment adjudicating Boone’s guilt set
aside that order. See Alexander v. State, 301 S.W.3d 361, 363 (Tex. App.—Fort
Worth 2009, no pet.). Accordingly, because the trial court did not include a fine
or order of restitution in its oral pronouncement of sentence at Boone’s
revocation hearing, we modify the trial court’s judgment adjudicating guilt to
delete the $1,500 fine and $74 in restitution, which must also be removed from
the order to withdraw funds from Boone’s inmate trust account. See Taylor,
131 S.W.3d at 502; see also Cox v. State, No. 02-13-00596-CR, 2015 WL
831544, at *1 (Tex. App.—Fort Worth Feb. 26, 2015, no pet.) (mem. op., not
designated for publication) (reforming judgment adjudicating guilt to delete fine
not included in oral pronouncement of sentence); Alexander, 301 S.W.3d at 364
(reforming judgment adjudicating guilt to delete restitution not included in oral
pronouncement of sentence).
5
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 grant
counsel’s motion to withdraw and affirm the trial court’s judgment as modified.
/s/ Lee Gabriel
LEE GABRIEL
JUSTICE
PANEL: WALKER, MEIER, and GABRIEL, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: July 28, 2016
6
Trey Ethan Boone v. State
Combined Opinion