IN THE
TENTH COURT OF APPEALS
No. 10-21-00014-CR
COURTNEY WASHINGTON,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 19th District Court
McLennan County, Texas
Trial Court No. 2017-339-C1
MEMORANDUM OPINION
Appellant Courtney Washington was placed on three years’ deferred
adjudication after pleading guilty to assault, family violence (Count One) and evading
arrest or detention (Count Two). The State later filed Motions to Adjudicate Guilt as to
both counts. At a hearing on the State’s motions, Washington entered pleas of “true” to
ten out of eleven allegations related to Count One and five out of six allegations related
to Count Two. The trial court then sentenced Washington to five years’ incarceration in
the Texas Department of Criminal Justice—Correctional Institutions Division on Count
One and twenty-four months’ incarceration in a state jail facility on Count Two, with
both terms to be served concurrently. We will affirm the trial court’s judgments as
modified.
Washington’s appointed counsel has filed a motion to withdraw and an Anders
brief in support of the motion asserting that he has diligently reviewed the appellate
record and that, in his opinion, the appeal is frivolous. See Anders v. California, 386 U.S.
738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Although informed of his right to do so,
Washington did not file a pro se response to the Anders brief.
Once an appellant’s court-appointed attorney files a motion to withdraw on the
ground that the appeal is frivolous and fulfills the requirements of Anders, the appellate
court is obligated to undertake “a full examination of all the proceedings,” and “decide
whether the case is wholly frivolous.” Id. at 744; accord Stafford v. State, 813 S.W.2d 503,
509-11 (Tex. Crim. App. 1991). Only then may the appellate court grant counsel’s
motion to withdraw. See Penson v. Ohio, 488 U.S. 75, 82-83, 109 S.Ct. 346, 351, 102
L.Ed.2d 300 (1988). An appeal is “wholly frivolous” or “without merit” when it “lacks
any basis in law or fact.” McCoy v. Court of Appeals, 486 U.S. 429, 439 n.10, 108 S.Ct.
1895, 1902 n.10, 100 L.Ed.2d 440 (1988).
Despite concluding that this appeal is frivolous, Washington’s appointed counsel
noted and briefed alleged errors in both judgments, specifically that a $750 fine imposed
in each judgment should be deleted because the fines were not orally pronounced at
sentencing. The State indicated in a letter to the Court that no brief would be submitted
in response to Washington’s appellate brief but noted that Washington’s request to
modify the judgments to delete the fines is determinable from the record. Because
counsel has raised an issue that effects the punishment in this case, we will treat the
Washington v. State Page 2
Anders brief as a brief on the merits and address the alleged error. See Hines v. State,
Nos. 10-13-00286-CR, 10-13-00292-CR, 2014 WL 2466562, at *1 (Tex. App.—Waco May
29, 2014, pet ref’d) (mem. op., not designated for publication).
A review of the record supports Washington’s request for modification. A
defendant’s sentence must be pronounced orally in his presence, and the oral
pronouncement controls when there is a conflict between the oral pronouncement and
the written memorialization of sentence. See TEX. CODE CRIM. PROC. ANN. art. 42.03 §
1(a); Taylor v. State, 131 S.W.3d 497, 502 (Tex. Crim. App. 2004). While a fine was
imposed in the original judgments placing Washington on deferred adjudication, it was
not orally pronounced as part of Washington’s sentence after the trial court adjudicated
his guilt. See Taylor, 131 S.W.3d at 500 (defendant placed on deferred adjudication has
not been found guilty, convicted, or sentenced, and when adjudicated, his sentence
must be orally pronounced in his presence); see also Freeman v. State, 554 S.W.3d 816, 817
(Tex. App.—Waco 2018, no pet.).
An appellate court has authority to correct a trial court’s judgment when it has
the necessary information to do so. See TEX. R. APP. P. 43.2(b); Bigley v. State, 865 S.W.2d
26, 27-28 (Tex. Crim. App. 1993). Accordingly, we will modify each of the judgments to
delete the $750 fine.
The trial court’s judgments are each affirmed as modified. Counsel’s motion to
withdraw from representation of Washington is denied as moot.
MATT JOHNSON
Justice
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Before Chief Justice Gray,
Justice Johnson, and
Justice Smith
Affirmed as modified; motion denied
Opinion delivered and filed March 16, 2022
Do not publish
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