In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-18-00142-CR
___________________________
JACOB TRISTAN GRAY, Appellant
V.
THE STATE OF TEXAS
On Appeal from Criminal District Court No. 1
Tarrant County, Texas
Trial Court No. 1486915D
Before Gabriel, Birdwell, and Bassel, JJ.
Memorandum Opinion by Justice Gabriel
MEMORANDUM OPINION
Appellant Jacob Tristan Gray appeals from the trial court’s judgment revoking
his community supervision, adjudicating his guilt for the third-degree felony of
assault, and sentencing him to five years’ confinement with a $28.94 fine. We modify
the judgment and the incorporated order to withdraw funds to delete the fine and
affirm the trial court’s judgment as modified. See Tex. R. App. P. 43.2(b).
Gray was indicted for the assault of a family member by impeding her
breathing. See Tex. Penal Code Ann. § 22.01(a), (b)(2)(B). On March 17, 2017, under
the terms of a plea-bargain agreement, Gray pleaded guilty to the offense, and the trial
court deferred adjudicating his guilt and placed him on community supervision for
two years, which followed the parties’ agreement. The trial court also imposed a $200
fine, which was an additional term of the plea-bargain agreement. The conditions
initially imposed on Gray’s community supervision were supplemented and amended
twice.
During the period of Gray’s community supervision, the State filed a petition
to proceed to a hearing to determine if Gray’s community supervision should be
revoked and his guilt adjudicated. The State alleged that Gray had violated five
conditions: (1) committed three new offenses, (2) failed to report to his community-
supervision officer four times, (3) did not successfully complete a batterer’s
intervention and prevention program, (4) did not complete a supportive outpatient
program, and (5) failed to pay the monthly supervision fee three times. At the trial
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court’s hearing on the State’s petition to adjudicate, Gray pleaded true to the State’s
remaining allegations after the State waived its allegation regarding the outpatient
program as agreed. The trial court found the State’s allegations true and heard
evidence regarding the appropriate disposition of the State’s petition—a continuation
of community supervision or confinement. The trial court adjudged Gray guilty of
the underlying offense and sentenced him to five years’ confinement. In the
judgment adjudicating Gray’s guilt, the trial court imposed a fine of $28.94 apparently
based on a calculation of Gray’s “Fines Remaining.”
Gray timely filed a notice of appeal from the trial court’s judgment. See Tex. R.
App. P. 26.2(a). Gray’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 in his professional opinion, this appeal is frivolous and without
merit. 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, 744 (1967). Gray did not respond to
counsel’s brief or motion although both counsel and this court advised him of his
right to do so. See Kelly v. State, 436 S.W.3d 313, 319 (Tex. Crim. App. 2014).
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 a
supervisory obligation to undertake an independent examination of the record. See
Stafford v. State, 813 S.W.2d 503, 511 (Tex. Crim. App. 1991); Mays v. State, 904 S.W.2d
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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) (orig. proceeding).
We have carefully reviewed the record and counsel’s brief and have determined
that the trial court’s judgment requires modification with regard to the assessment of
the $28.94 fine that appears in the trial court’s written judgment adjudicating guilt and
the order to withdraw funds from Gray’s inmate trust account. The trial court did not
orally assess a fine during its pronouncement of Gray’s sentence, but the written
judgment adjudicating guilt includes the fine. Although the trial court included a $200
fine in the order of deferred adjudication, the judgment adjudicating Gray’s guilt set
aside the prior deferred order, including the fine. See Taylor v. State, 131 S.W.3d 497,
502 (Tex. Crim. App. 2004). But the trial court’s oral pronouncement of sentence
controls over its written judgment to the extent they conflict. Id. Accordingly,
because the trial court did not include a fine in its oral pronouncement of sentence at
Gray’s revocation hearing, we modify the trial court’s judgment adjudicating guilt to
delete the $28.94 fine, which must also be deducted from the incorporated order to
withdraw funds from Gray’s inmate trust account. See id.; Bowie v. State, No. 02-16-
00379-CR, 2017 WL 2806320, at *3 (Tex. App.—Fort Worth June 29, 2017, no pet.)
(mem. op., not designated for publication); Cox v. State, No. 02-13-00596-CR, 2015
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WL 831544, at *1 (Tex. App.—Fort Worth Feb. 26, 2015, no pet.) (mem. op., not
designated for publication).
Except for this modification to the judgment, we agree with counsel that this
appeal is wholly frivolous and without merit. Our independent review of the record
reveals nothing further 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,
modify the trial court’s judgment and incorporated order to withdraw funds to delete
the fine, and affirm the judgment as modified. See Bray v. State, 179 S.W.3d 725, 726
(Tex. App.—Fort Worth 2005, no pet.) (en banc) (modifying judgment in Anders
appeal and affirming judgment as modified).
/s/ Lee Gabriel
Lee Gabriel
Justice
Do Not Publish
Tex. R. App. P. 47.2(b)
Delivered: February 28, 2019
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