Full Opinion

In the Court of Appeals Second Appellate District of Texas at Fort Worth ___________________________ No. 02-25-00309-CR ___________________________ JUSTIN COLBY MCFARLAND, Appellant V. THE STATE OF TEXAS On Appeal from the 355th District Court Hood County, Texas Trial Court No. CR16222 Before Bassel, Womack, and Walker, JJ. Memorandum Opinion by Justice Walker MEMORANDUM OPINION A jury found Appellant Justin Colby McFarland guilty of the offense of aggravated sexual assault of a child under 14 years of age and assessed his punishment at 30 years’ confinement. See Tex. Penal Code § 22.021(a)(1)(B)(iii), (2)(B). The trial court sentenced McFarland in accordance with the jury’s verdict. McFarland appealed. McFarland’s court-appointed appellate counsel has filed a motion to withdraw as counsel and brief in support of that motion in which she asserts that, in her professional opinion, this appeal is frivolous. Counsel’s brief professionally evaluates the appellate record and demonstrates why no arguable grounds for relief exist. The brief and withdrawal motion meet the requirements of Anders v. California, 386 U.S. 738, 744–45, 87 S. Ct. 1396, 1400 (1967). See Stafford v. State, 813 S.W.2d 503, 509–10 (Tex. Crim. App. 1991). Counsel also complied with the requirements of Kelly v. State, 436 S.W.3d 313, 319–20 (Tex. Crim. App. 2014). McFarland was granted access to the appellate record but thereafter, although given an opportunity, did not file a pro se response. The State also did not file a response. After an appellant’s court-appointed counsel files a motion to withdraw and a brief that fulfills Anders’s requirements, we must independently examine the record for any arguable ground that may be raised on the appellant’s behalf. See Stafford, 2 813 S.W.2d at 511. Only then may we grant counsel’s motion to withdraw. See Penson v. Ohio, 488 U.S. 75, 82–83, 109 S. Ct. 346, 351 (1988). As is our duty, we have carefully reviewed counsel’s brief and the appellate record. The record shows that the trial court did not include in its oral pronouncement of McFarland’s sentence a child abuse prevention fine under Code of Criminal Procedure Article 102.0186. Yet, page one of the judgment reflects a $100 fine that corresponds to a $100 fine under Article 102.0186 on page three, where the fine’s basis is identified. A trial court’s pronouncement of a sentence is oral, while the judgment, including the sentence assessed, is merely the written embodiment of that oral pronouncement. See Tex. Code Crim. Proc. art. 42.03, § 1 (providing that “sentence shall be pronounced in the defendant’s presence”). When the oral pronouncement of a sentence and the written judgment vary, the oral pronouncement controls. Taylor v. State, 131 S.W.3d 497, 500 (Tex. Crim. App. 2004); Coffey v. State, 979 S.W.2d 326, 328 (Tex. Crim. App. 1998). The rationale for this rule is that the crucial moment is when all the parties are physically present at the sentencing hearing and able to hear and respond to the imposition of sentence. Once the defendant leaves the courtroom, he begins serving the sentence imposed. See Ex parte Madding, 70 S.W.3d 131, 135 (Tex. Crim. App. 2002). Here, because the $100 fine under Article 102.0186 was not part of the trial court’s oral pronouncement of McFarland’s sentence, we modify the written judgment 3 to delete it. See Bray v. State, 179 S.W.3d 725, 726 (Tex. App.—Fort Worth 2005, no pet.) (en banc) (holding that appellate courts have the authority to reform judgments in Anders appeals and to affirm those judgments as reformed); see also Anastassov v. State, 664 S.W.3d 815, 823 (Tex. Crim. App. 2022) (“A fine is not a court cost or fee; it is part of the punishment.”); Armstrong v. State, 340 S.W.3d 759, 767 (Tex. Crim. App. 2011) (holding fines must be orally pronounced in defendant’s presence); cf. Gourley v. State, 710 S.W.3d 368, 379 (Tex. App.—Fort Worth 2025, pet. ref’d) (modifying judgment to delete $100 fine when said fine was not orally pronounced at sentencing). Except for this modification to the judgment, we agree with counsel that McFarland’s appeal would be wholly frivolous and without merit; we find nothing in the appellate record that otherwise arguably might support his 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 and affirm the trial court’s judgment as modified. /s/ Brian Walker Brian Walker Justice Do Not Publish Tex. R. App. P. 47.2(b) Delivered: August 27, 2026 4