Opinion filed December 9, 2021
In The
Eleventh Court of Appeals
_________________
Nos. 11-21-00150-CR & 11-21-00151-CR
_________________
ERMANDO BARRERA, JR., Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 32nd District Court
Nolan County, Texas
Trial Court Cause Nos. 12148 & 12149
MEMORANDUM OPINION
Appellant, Ermando Barrera, Jr., pleaded guilty in each cause to the state jail
felony offense of forgery of a financial instrument. Pursuant to the terms of the plea
agreement in each cause, the trial court deferred a finding of guilt, placed Appellant
on community supervision for three years, and ordered Appellant to pay costs and
fees. In cause no. 12148, the trial court also ordered Appellant to pay restitution in
the amount of $3,275 to First Financial Bank, Sweetwater, Texas. The State
subsequently filed a motion to adjudicate Appellant’s guilt in both causes. The trial
court held a hearing on the State’s motions, found the allegations in the State’s
motions to be true, adjudicated Appellant’s guilt, and assessed his punishment in
each cause at confinement for two years in a state jail facility. The written judgments
reflect “Restitution” payable to “AGENT/AGENCY” (the “Office of Court
Collections”) in the amounts of $3,073 and $848, respectively. We modify the trial
court’s judgments to delete the restitution, and we affirm as modified.
Appellant’s court-appointed counsel has filed a motion to withdraw in each
appeal. Both motions are supported by a brief in which counsel professionally and
conscientiously examines the record and applicable law and states that she has
concluded that the appeal is frivolous and without merit. Counsel has provided
Appellant with a copy of the briefs, a copy of the motions to withdraw, an
explanatory letter, and a copy of the reporter’s record and the clerk’s records.
Counsel advised Appellant of his right to review the records and file a response to
counsel’s briefs. 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 record in each cause, and we agree that the appeals are 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). Furthermore, absent a void judgment, issues relating to an
2
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 upon our review of the record, we agree
with counsel that no arguable grounds for appeal exist.1
We conclude, however, that both judgments contain a nonreversible error: a
variation between the oral pronouncement of sentence and the written judgment
adjudicating guilt. The written judgment in cause no. 12148 includes restitution of
$3,073. The written judgment in cause no. 12149 includes restitution of $848. When
the trial court assessed Appellant’s punishment and orally pronounced the sentences
in open court, the trial court did not mention any restitution. The trial court was
required to pronounce the sentences in Appellant’s presence. See TEX. CODE CRIM.
PROC. ANN. art. 42.03(a) (West Supp. 2021); 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).
Furthermore, we note that court costs and fees are not properly subject to a
restitution order. See Hanna v. State, 426 S.W.3d 87, 91 (Tex. Crim. App. 2014)
(recognizing that restitution “may be ordered only to a victim of an offense for which
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.
3
the defendant is charged”); Sexton v. State, No. 11-18-00278-CR, 2019 WL
4316791, at *1 (Tex. App.—Eastland Sept. 12, 2019, pet. ref’d) (per curiam) (mem.
op., not designated for publication). A trial court is authorized to order a defendant
convicted of an offense to pay restitution to a victim of the offense or to a crime
victim’s assistance fund, not to an agency of the State of Texas. See TEX. CODE
CRIM. PROC. ANN. art. 42.037(a), (i) (West Supp. 2021); Hanna, 426 S.W.3d at 91,
94; Sexton, 2019 WL 4316791, at *1. Thus, it was not proper for the trial court, in
its written judgments, to order restitution payable to “AGENT/AGENCY”—
specifically described as the “Office of Court Collections” in Sweetwater.
Because the trial court did not mention any restitution when it orally
pronounced Appellant’s sentences, because the judgments show that restitution was
ordered to be paid to a state agency, and because we have the necessary information
for reformation, we modify the trial court’s judgments adjudicating guilt to delete
the restitution. See Cerna v. State, No. 11-14-00363-CR, 2015 WL 3918259, at *2
(Tex. App.—Eastland June 25, 2015, no pet.) (per curiam) (mem. op., not designated
for publication); Alexander v. State, 301 S.W.3d 361, 364 (Tex. App.—Fort Worth
2009, no pet.) (holding that, because the requirement that Alexander pay $10,311.25
in restitution is punishment and part of his sentence in the judgment adjudicating his
guilt, it must have been included in the trial court’s oral pronouncement of sentence
to be properly included in the written judgment adjudicating guilt—despite the fact
that it was previously included in the order deferring the adjudication of Alexander’s
guilt); see also Taylor, 131 S.W.3d at 502.
We grant counsel’s motion to withdraw in each cause; modify the judgment
adjudicating guilt in trial court cause no. 12148 to delete the “Restitution” of
“$3,073.00”; modify the judgment adjudicating guilt in trial court cause no. 12149
4
to delete the “Restitution” of “848.00”; and, as modified, affirm the judgments of
the trial court.
PER CURIAM
December 9, 2021
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Bailey, C.J.,
Trotter, J., and Williams, J.
5