Opinion filed July 15, 2021
In The
Eleventh Court of Appeals
___________
No. 11-20-00247-CR
___________
DAVID ANTHONY SANDOVAL, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 70th District Court
Ector County, Texas
Trial Court Cause No. A-19-1351-CR
MEMORANDUM OPINION
Appellant, David Anthony Sandoval, pleaded guilty to the offense of
aggravated assault with a deadly weapon. Pursuant to the terms of the plea
agreement, the trial court deferred a finding of guilt, placed Appellant on community
supervision for two years, and imposed a fine of $500. The State subsequently filed
a motion to adjudicate guilt. The trial court conducted a hearing on the motion, at
which Appellant pleaded true to two allegations related to payment of fees
and not true to the three other allegations. After hearing testimony from
Appellant’s community supervision officer and Appellant’s ex-girlfriend, the trial
court found all five allegations to be true, revoked Appellant’s community
supervision, adjudicated him guilty of the charged offense, and assessed his
punishment at confinement for fifteen years. We modify the trial court’s judgment
to delete the fine and some of the attorney’s fees, and we affirm as modified.
Appellant’s court-appointed counsel has filed a motion to withdraw. The
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 the
appeal is frivolous and without merit. Counsel has provided Appellant with a copy
of the brief, a copy of the motion to withdraw, an explanatory letter, and a copy of
both the reporter’s record and the clerk’s record. 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 brief. Following
the procedures outlined in Anders and Schulman, we have independently reviewed
the record, and we agree that the appeal is without merit. 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).
In this regard, a plea of true standing alone is sufficient to support a trial court’s
decision to revoke community supervision and proceed with an adjudication of guilt.
See Moses v. State, 590 S.W.2d 469, 470 (Tex. Crim. App. [Panel Op.] 1979).
Furthermore, absent a void judgment, issues relating to an original plea proceeding
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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 upon our review of the record, we agree with counsel that no arguable
grounds for appeal exist. 1
We conclude, however, that the judgment contains nonreversible errors. First,
there is a variation between the oral pronouncement of sentence and the written
judgment adjudicating guilt. The written judgment and the bill of costs include a
fine of $500. 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 Supp. 2020); 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). A judgment adjudicating guilt “sets aside the order deferring
adjudication, including the previously imposed fine.” Taylor, 131 S.W.3d at 502.
Thus, in a deferred adjudication situation, the fine from the original order of deferred
adjudication does not carry forward if the defendant is ultimately adjudicated
guilty—unless the trial court, upon adjudication, again imposes a fine when it
1
We note that Appellant has a right to file a petition for discretionary review pursuant to Rule 68
of the Texas Rules of Appellate Procedure.
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pronounces the defendant’s sentence in open court. See id. 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 adjudicating guilt to delete the fine. See Taylor, 131 S.W.3d at 502;
Hall v. State, No. 11-19-00400-CR, 2020 WL 5241067, at *1 (Tex. App.—Eastland
Sept. 3, 2020, no pet.) (mem. op., not designated for publication) (modifying a bill
of cost so as to delete the assessment of a fine when the record showed that the trial
court did not impose a fine when it adjudicated the appellant’s guilt and assessed
punishment).
Second, the bill of costs attached to the written judgment includes two $600
assessments for court-appointed attorney’s fees. The first such assessment relates to
the 2019 deferred adjudication proceeding; the second relates to the 2020
adjudication proceeding. The trial court had determined that Appellant was indigent
and appointed counsel to represent Appellant during the deferred adjudication
proceeding, the adjudication proceeding, and the appeal. Because the trial court
determined that Appellant was indigent and because nothing in the record
demonstrates that he was able to pay all or part of his attorney’s fees, court-appointed
attorney’s fees related to the adjudication proceeding cannot be assessed against
Appellant. See Mayer v. State, 309 S.W.3d 552, 555–56 (Tex. Crim. App. 2010);
Jackson v. State, 562 S.W.3d 717, 723 (Tex. App.—Amarillo 2018, no pet.). We
note, however, that Appellant has waived any complaint about the assessment of the
original $600 amount for court-appointed attorney’s fees. See Riles v. State, 452
S.W.3d 333, 337 (Tex. Crim. App. 2015) (holding that the appellant procedurally
defaulted any complaint about attorney’s fees assessed in connection with the initial
order of deferred adjudication because he failed to raise the issue in a direct appeal
from that order). Because the $600 assessment against Appellant for court-
appointed attorney’s fees for the 2020 adjudication action was improper and should
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be struck, we delete from the bill of costs the assessment of $600 for attorney’s fees
incurred during the adjudication proceeding. See Winegeart v. State, No. 11-19-
00299-CR, 2020 WL 1294616, at *2 (Tex. App.—Eastland Mar. 19, 2020, pet. ref’d)
(mem. op., not designated for publication) (modifying bill of cost to delete
assessment of attorney’s fees).
We grant counsel’s motion to withdraw; modify the judgment adjudicating
guilt and the bill of costs to delete the $500 fine and the $600 charge for court-
appointed attorney’s fees assessed against Appellant with respect to the 2020
adjudication proceeding; and, as modified, affirm the judgment of the trial court.
PER CURIAM
July 15, 2021
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Bailey, C.J.,
Trotter, J., and Williams, J.
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