Junior v. State

676 S.W.3d 228

Juchway RHODES Junior, Appellant

v.The STATE of Texas, Appellee

NO. 14-22-00398-CR

Court of Appeals of Texas, Houston (14th Dist.).

Opinion filed August 31, 2023

Jessica Alane Caird, Kim K. Ogg, Houston, for Appellee.

Allen C. Isbell, Houston, for Appellee.

Juchway Rhodes Junior, Pro Se.

Panel Consists of Justices Jewell, Spain, and Wilson.

OPINION

Kevin Jewell, Justice

Appellant Juchway Rhodes Junior pleaded not guilty to the first-degree felony offense of theft of property with an aggregate value of at least $300,000. See Tex. Pen. Code Ann. § 31.03(a), (e)(7). A jury found him guilty. Appellant elected to have the court assess punishment, and after appellant pleaded true to two enhancement paragraphs, the court assessed punishment at forty years confinement in the Texas Department of Corrections, Institutional Division. During the oral pronouncement of sentence and at the State's request, the court also recommended that restitution in the amount of $442,422.30 be a condition of any parole. The written judgment, however, orders restitution of $442,422.30 payable to the victim, and also orders appellant to pay $290 in court costs and $265 in fees.

Counsel's Motion to Withdraw

Appellant's appointed counsel filed a motion to withdraw and a brief concluding that this appeal is frivolous and without merit. See Anders v. California , 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). However, counsel asserts that the judgment should be modified (1) to delete or reduce certain amounts listed on the bill of costs and (2) to delete the restitution portion of the written judgment because it does not conform to the oral pronouncement.

The brief meets the requirements of Anders by presenting a professional evaluation of the record and supplying us with references to the record and legal authority. See id. at 744, 87 S.Ct. 1396 ; see also High v. State , 573 S.W.2d 807 (Tex. Crim. App. 1978) ; Gainous v. State , 436 S.W.2d 137 (Tex. Crim. App. 1969). Counsel sent copies of the brief and motion to withdraw to appellant and informed appellant of his rights in compliance with the requirements of Kelly v. State , 436 S.W.3d 313 (2014). Appellant was advised of his right to review the appellate record and file a pro se brief. In addition, counsel advised appellant to immediately file a motion in this court if he wished to review the appellate record and enclosed a form motion for that purpose. Appellant did not request access to the record. This court then set a deadline for appellant to file a pro se brief. No pro se brief was filed. The State declined to file a brief in response to the Anders brief.

The trial court's written judgment imposes $442,422.30 in restitution payable to the victim. The record shows, however, that such a restitution order was not part of the trial court's oral pronouncement of appellant's sentence. Rather, during the punishment hearing the trial court granted the State's request to recommend that appellant pay $442,422.30 in restitution as a condition of parole.¹

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. Taylor v. State , 131 S.W.3d 497, 500 (Tex. Crim. App. 2004) ; Thomas v. State , No. 01-13-00598-CR, 2013 WL 6729025, at *2 (Tex. App.—Houston [1st Dist.] Dec. 19, 2013, no pet.) (mem. op., not designated for publication). Thus, "when there is a variation between the oral pronouncement of sentence and the written memorialization of the sentence, the oral pronouncement controls." Coffey v. State , 979 S.W.2d 326, 328 (Tex. Crim. App. 1998) ; Thomas , 2013 WL 6729025, at *2. Because restitution is punishment, it must be included in the oral pronouncement of sentence to be valid. See Thomas , 2013 WL 6729025 ; see also Ex parte Cavazos , 203 S.W.3d 333, 338 (Tex. Crim. App. 2006) ("We have held that restitution is punishment...."). When, as here, the trial court did not include an order to pay restitution to the victim in its oral pronouncement of appellant's sentence, the court cannot assess such restitution in its written judgment. Thomas , 2013 WL 6729025, at *2 (in Anders appeal, modifying judgment to delete payment of $825.98 as restitution).

Further, appellant's counsel has drawn our attention to three errors regarding costs and fees that he contends may be corrected by modification of the judgment because the listed costs or fees do not comply with statutory requirements. First, the bill of costs lists a cost of $185 for "Consolidated Court Cost – State." However, for offenses committed prior to January 2020, such as appellant's offense, the statutory amount for this court cost was $133. Tex. Loc. Gov't Code Ann. § 133.102. Thus, we agree that the judgment should be modified to reflect the amount of $133 in costs for "Consolidated Court Cost – State."

Second, the bill of costs lists a cost of $105 for "Consolidated Court Cost – Local." However, this cost was added by amendment in 2019 and is only applicable to offenses committed on or after January 1, 2020. See id. § 134.101. We agree that the judgment should be modified to delete the assessment of $105 for "Consolidated Court Cost – Local."

Finally, the bill of costs lists a cost of $185 for "Attach/Convey Witness." A defendant convicted of a felony or misdemeanor is responsible for reimbursing certain fees for services performed by a peace officer, such as $5 for summoning a witness, $0.29 per mile for mileage required of an officer to summon or attach a witness, and $10 per day spent by an officer who attaches a witness on the order of a court outside the county. Tex. Code Crim. Proc. art. 102.011(a)(3), (b)(3), (c). We see nothing in the record demonstrating that a peace officer served a subpoena on any witness or conveyed or attached any witness. We therefore agree that the judgment should be modified to delete the assessment of $185 for "Attach/Convey Witness."

Because the judge did not order restitution as part of appellant's sentence during oral pronouncement of the sentence, appellant is entitled to have the restitution order deleted from his sentence. See Burt v. State , 445 S.W.3d 752, 759-60 (Tex. Crim. App. 2014). However, because the court's oral pronouncement of sentence undisputedly included a recommendation that restitution should be a condition of any parole, because our obligation when confronted with a conflict between the oral pronouncement of sentence and the written judgment is to conform the written judgment to the oral pronouncement² and "make the judgment speak the truth",³ and because we have the necessary information for reformation,⁴ we modify the trial court's judgment to delete the language requiring restitution in the amount of $442,422.30 to the victim and to state instead that the trial court recommends to the parole board that restitution of $442,422.30 be a condition of any parole. See Henderson v. State , Nos. 04-15-00648-CR, 04-15-00649-CR, 2016 WL 2753863, at *2 (Tex. App.—San Antonio May 11, 2016, no pet.) (mem. op., not designated for publication) (in Anders case when counsel briefed issue of restitution and requested modification of judgment, court agreed and modified judgment to delete restitution order and affirmed as modified); Thomas , 2013 WL 6729025, at *2. Further, we modify the judgment to: (1) reflect the amount of $133 in costs for "Consolidated Court Cost – State;" (2) reflect the amount of $0 for "Consolidated Court Cost – Local;" and (3) reflect the amount of $0 for "Attach/Convey Witness."

We have thoroughly reviewed the record and counsel's brief. We agree with counsel that, except for the modifications identified above, the appeal is wholly frivolous and without merit. See Bledsoe v. State , 178 S.W.3d 824, 826-27 (Tex. Crim. App. 2005). We therefore grant the motion to withdraw filed by appellant's counsel and affirm the trial court's judgment as modified.⁵

Response to the Dissent

Our dissenting colleague accuses us of failing to follow proper Anders procedure and of depriving appellant of his constitutional right to meaningful appellate counsel. This accusation is baseless.

A criminal defense attorney must zealously represent the client's interest on appeal, but if the appointed attorney determines, after a conscientious examination of the record, that the appeal is wholly frivolous, the attorney is duty-bound by ethical standards to request permission to withdraw. See Anders , 386 U.S. at 744, 87 S.Ct. 1396 ; In re Schulman , 252 S.W.3d 403, 406 (Tex. Crim. App. 2008). The motion to withdraw must be accompanied by a sufficient brief assuring the appellate court that counsel's determination is indeed based on a thorough study of the record. In re Schulman , 252 S.W.3d at 406. In the so-called Anders brief, counsel must also point out "any potentially plausible points of error" if counsel concludes any exist. Id. at 406 & n.9. Counsel's duty to withdraw is based on applicable professional and ethical responsibilities as an officer of the court "not to burden the judicial system with false claims, frivolous pleadings, or burdensome time demands." Id. at 407.

When an appellate court receives from appointed counsel a motion to withdraw accompanied by a brief demonstrating discharge of counsel's required duties, the court of appeals will, as the Court of Criminal Appeals puts it: "either agree that the appeal is wholly frivolous, grant the attorney's motion to withdraw, and dismiss the appeal, or it will determine that there may be plausible grounds for appeal. If the court of appeals decides that there are any colorable claims for appeal, it will: (1) grant the original attorney's motion to withdraw; and (2) abate the case and send it back to the trial court to appoint a new attorney with directions to file a merits brief." Id. at 409. According to the dissenting justice, we have deviated from these prescribed options because we have...