Opinion filed July 8, 2021
In The
Eleventh Court of Appeals
_______________
Nos. 11-19-00354-CR & 11-19-00355-CR
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THOMAS ELIJAH ATKINS, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 91st District Court
Eastland County, Texas
Trial Court Cause Nos. 25007 & 24281
MEMORANDUM OPINION ON RE MAND
Appellant, Thomas Elijah Atkins, pleaded guilty to the offense of bail jumping
and failure to appear and the offense of possession of a controlled substance (less
than one gram of methamphetamine). Pursuant to the terms of the plea agreements,
the trial court deferred a finding of guilt and placed Appellant on community
supervision for three years in each case. In one of the cases—cause no. 24281—the
trial court also assessed a fine of $2,000 when it deferred the adjudication of
Appellant’s guilt. The State subsequently filed a motion to adjudicate Appellant’s
guilt in each case. The trial court held a contested hearing on the State’s motions to
adjudicate, found the State’s allegations to be true, revoked Appellant’s community
supervision, and adjudicated Appellant guilty of the charged offenses. The trial court
assessed Appellant’s punishment in cause no. 25007 at imprisonment for two years
and in cause no. 24281 at confinement in a state jail facility for eighteen months.
We modify the trial court’s judgments and affirm the judgments as modified.
Appellant’s court-appointed counsel has filed a motion to withdraw in each
appeal. Each motion is supported by a brief in which counsel professionally and
conscientiously examines the record and applicable law and states that he has
concluded that these appeals are frivolous and without merit. In each cause, counsel
provided Appellant with a copy of the brief, a copy of the motion to withdraw, a
copy of the clerk’s record and the reporter’s record, and an explanatory letter.
Counsel advised Appellant of his right to review the record and file a response to
counsel’s brief. Counsel also advised Appellant of his right to file a pro se petition
for discretionary review in order to seek review by the Texas Court of Criminal
Appeals. See TEX. R. APP. P. 68. Court-appointed counsel has complied with the
requirements of Anders v. California, 386 U.S. 738 (1967); Kelly v. State, 436
S.W.3d 313 (Tex. Crim. App. 2014); In re Schulman, 252 S.W.3d 403 (Tex. Crim.
App. 2008); and Stafford v. State, 813 S.W.2d 503 (Tex. Crim. App. 1991).
Appellant has not filed a pro se response to counsel’s Anders briefs.
Following the procedures outlined in Anders and Schulman, we have independently
reviewed the records, and we agree that the appeals are without merit. The State
presented evidence in support of the allegations in the motions to adjudicate. In that
regard, we note that proof of one violation of the terms and conditions of community
supervision is sufficient to support revocation. Smith v. State, 286 S.W.3d 333, 342
(Tex. Crim. App. 2009). Further, absent a void judgment, issues relating to an
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original plea proceeding may not be raised in a subsequent appeal from the
revocation of community supervision and adjudication of guilt. Jordan v. State, 54
S.W.3d 783, 785–86 (Tex. Crim. App. 2001); Manuel v. State, 994 S.W.2d 658, 661–
62 (Tex. Crim. App. 1999). Based on our review of the records, we agree with
counsel that no arguable grounds for appeal exist.1
We conclude, however, that the judgments contain nonreversible errors. First,
in cause no. 24281, there is a variation between the oral pronouncement of sentence
and the written judgment of adjudication. The written judgment includes “Court
Costs” of $2,984.64; the clerk’s bill of cost indicates that $2,000 of that amount
constitutes a fine rather than court costs. When the trial court assessed Appellant’s
punishment and orally pronounced the sentence in open court, the trial court did not
mention a fine. The trial court was required to pronounce the sentence in Appellant’s
presence. See TEX. CODE CRIM. PROC. ANN. art. 42.03 (West 2018); Taylor v. State,
131 S.W.3d 497, 500 (Tex. Crim. App. 2004). When there is a variation between the
oral pronouncement of sentence and the written judgment, the oral pronouncement
controls. Coffey v. State, 979 S.W.2d 326, 328–29 (Tex. Crim. App. 1998); see also
Taylor, 131 S.W.3d at 500–02 (explaining the distinction between regular
community supervision, in which sentence is imposed but suspended when a
defendant is placed on community supervision, and deferred-adjudication
community supervision, in which the adjudication of guilt and the imposition of
sentence are deferred). Because the trial court did not mention any fine when it
orally pronounced Appellant’s sentence and because we have the necessary
information for reformation, we modify the trial court’s judgment to delete the fine.
See Taylor, 131 S.W.3d at 502; Cerna v. State, No. 11-14-00363-CR, 2015 WL
1
We note that Appellant has a right to file a petition for discretionary review pursuant to TEX. R.
APP. P. 68.
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3918259, at *2 (Tex. App.—Eastland June 25, 2015, no pet.) (mem. op., not
designated for publication).
Second, in both judgments, the trial court ordered Appellant to pay court costs
that included a time payment fee of $25. In light of the recent opinion of the Court
of Criminal Appeals in Dulin, we conclude that the time payment fee must be struck
in its entirety as prematurely assessed. See Dulin v. State, 620 S.W.3d 129, 133 &
n.29 (Tex. Crim. App. 2021). When the trial court erroneously includes fees as court
costs, we should modify the trial court’s judgment to remove the improperly
assessed fees. See Cates v. State, 402 S.W.3d 250, 252 (Tex. Crim. App. 2013).
Accordingly, we modify the trial court’s judgment and the bill of cost to delete
the time payment fee of $25, without prejudice to a time payment fee being assessed
later “if, more than 30 days after the issuance of the appellate mandate, [Appellant]
has failed to completely pay any fine, court costs, or restitution that he owes.” See
Dulin, 620 S.W.3d at 133.
We grant counsel’s motions to withdraw; modify the judgment of the trial
court in cause no. 24281 to delete the $2,000 fine and the $25 time payment fee;
modify the judgment of the trial court in cause no. 25007 to delete the $25 time
payment fee; and, as modified, affirm the judgments of the trial court.
PER CURIAM
July 8, 2021
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Trotter, J.,
Williams, J., and Wright, S.C.J.2
Bailey, C.J., not participating.
2
Jim R. Wright, Senior Chief Justice (Retired), Court of Appeals, 11th District of Texas at Eastland,
sitting by assignment.
4