Samuel Well Toler, Jr. v. State
Date Filed2010-12-23
Docket02-10-00033-CR
Cited0 times
StatusPublished
Full Opinion (html_with_citations)
COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-10-00033-CR
SAMUEL WELL TOLER, JR. APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM THE 355TH DISTRICT COURT OF HOOD COUNTY
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MEMORANDUM OPINION1
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A jury convicted Appellant Samuel Well Toler, Jr. of possession of a
controlled substanceāheroināover one gram but less than four grams and
assessed his punishment at seven yearsā confinement and a $5,000 fine. The
1
See Tex. R. App. P. 47.4.
trial court sentenced him accordingly. The trial courtās written judgment also
includes restitution in the amount of $140.
Tolerās court-appointed appellate counsel has filed a motion to withdraw as
counsel and a brief in support of that motion. Counselās brief and motion meet
the requirements of Anders v. California2 by presenting a professional evaluation
of the record demonstrating why there are no arguable grounds for relief. This
court afforded Toler the opportunity to file a brief on his own behalf, but he did
not do so.
As the reviewing court, we must conduct an independent evaluation of the
record to determine whether counsel is correct in determining that the appeal is
frivolous. See Stafford v. State, 813 S.W.2d 503, 511(Tex. Crim. App. 1991); Mays v. State,904 S.W.2d 920, 923
(Tex. App.āFort Worth 1995, no pet.). Only then may we grant counselās motion to withdraw. See Penson v. Ohio,488 U.S. 75
, 82ā83,109 S. Ct. 346, 351
(1988).
We have carefully reviewed the record and counselās brief. The record
shows that the trial court did not include restitution in its oral pronouncement of
Tolerās sentence at trial. Yet the trial court=s written judgment includes restitution
in the amount of $140.
2
386 U.S. 738,87 S. Ct. 1396
(1967).
2
A trial court=s pronouncement of sentence is oral, while the judgment,
including the sentence assessed, is merely the written declaration and
embodiment of that oral pronouncement. See Tex. Code Crim. Proc. Ann. art.
42.03, ' 1(a) (Vernon Supp. 2010) (providing that Asentence shall be pronounced
in the defendant=s presence@). When the oral pronouncement of 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).
Restitution is punishment. Weir v. State, 278 S.W.3d 364, 366(Tex. Crim. App. 2009); Ex parte Cavazos,203 S.W.3d 333, 338
(Tex. Crim. App. 2006) (orig. proceeding). Therefore, it must be included in the oral pronouncement of sentence to be valid. Sauceda v. State,309 S.W.3d 767, 769
(Tex. App.ā Amarillo 2010, pet. refād); Alexander v. State,301 S.W.3d 361, 364
(Tex. App.ā Fort Worth 2009, no pet.); Brown v. State, No. 02-08-00063-CR,2009 WL 1905231
, at *2 (Tex. App.āFort Worth July 2, 2009, no pet.) (mem. op., not
designated for publication).
Because the trial court did not include restitution in its oral pronouncement
of Tolerās sentence, the court could not assess restitution in its written judgment.
See Sauceda, 309 S.W.3d at 769; Alexander,301 S.W.3d at 364
; Brown,2009 WL 1905231
, at *2. We therefore reform the trial court=s judgment to delete the
3
language regarding the payment of restitution. See Bray v. State, 179 S.W.3d
725, 726 (Tex. App.āFort Worth 2005, no pet.) (en banc) (holding that an
appellate court has the authority to reform a judgment in an Anders appeal and to
affirm that judgment as reformed).
Except for this necessary modification to the judgment, we agree with
counsel that this appeal is wholly frivolous and without merit; we find nothing else
in the record that arguably might support an appeal. See Bledsoe v. State, 178
S.W.3d 824, 827ā28 (Tex. Crim. App. 2005). Accordingly, we grant counsel=s
motion to withdraw and affirm the trial court=s judgment as modified.
PER CURIAM
PANEL: WALKER, MEIER, and GABRIEL, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: December 23, 2010
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