Opinion
No. 11-20-00066-CR
11-05-2020
JOSMASY JOSEL CESPEDES, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 70th District Court Ector County, Texas
Trial Court Cause No. A-16-1341-CR
MEMORANDUM OPINION
Appellant, Josmasy Josel Cespedes, pleaded guilty to the offense of aggravated assault of a child. Pursuant to the terms of the plea agreement, the trial court deferred a finding of guilt, placed Appellant on community supervision for ten years, and imposed a fine of $500. The State subsequently filed a motion to adjudicate Appellant's guilt. The trial court conducted a hearing on the motion, at which Appellant pleaded true to the two allegations contained in the State's motion. The trial court found the two allegations to be true, revoked Appellant's community supervision, adjudicated him guilty of the charged offense, and assessed his punishment at confinement for sixty years. We modify the trial court's judgment to delete the fine and to reflect the age of the victim of the offense, and we affirm as modified.
Appellant's court-appointed counsel has filed a motion to withdraw. The motion is supported by a brief in which counsel professionally and conscientiously examines the record and applicable law and states that he has concluded that the appeal is frivolous and without merit. Counsel has provided Appellant with a copy of the brief, a copy of the motion to withdraw, an explanatory letter, and a copy of both the reporter's record and the clerk's record. Counsel advised Appellant of his right to review the record and file a response to counsel's brief. 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 brief. Following the procedures outlined in Anders and Schulman, we have independently reviewed the record, and we agree that the appeal is 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). In this regard, a plea of true standing alone is sufficient to support a trial court's decision to revoke community supervision and proceed with an adjudication of guilt. See Moses v. State, 590 S.W.2d 469, 470 (Tex. Crim. App. [Panel Op.] 1979). Furthermore, absent a void judgment, issues relating to an 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.
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.
We conclude, however, that the judgment contains nonreversible errors. First, there is a variation between the oral pronouncement of sentence and the written judgment adjudicating guilt. The written judgment includes a fine of $500. When the trial court assessed Appellant's punishment and orally pronounced the sentence in open court, the trial court did not mention a fine. The trial court was required to pronounce the sentence in Appellant's presence. See TEX. CODE CRIM. PROC. ANN. art. 42.03 (West Supp. 2020); 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). Because the trial court did not mention any fine when it orally pronounced Appellant's sentence and because we have the necessary information for reformation, we modify the trial court's judgment adjudicating guilt to delete the fine. See Taylor, 131 S.W.3d at 502; 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).
We note that the reimbursement fees assessed by the trial court in the judgment adjudicating guilt appear to include a court-appointed attorney's fee of $600. Because the $600 court-appointed attorney's fee was included in the original judgment deferring the adjudication of Appellant's guilt, we have not deleted it from the judgment adjudicating guilt. See Riles v. State, 452 S.W.3d 333, 337 (Tex. Crim. App. 2015) (holding that the defendant procedurally defaulted by failing to raise the attorney-fee issue in a direct appeal from the initial order of deferred adjudication).
Second, in the judgment adjudicating guilt, the trial court found that Appellant was required to register as a sex offender in accordance with Chapter 62 of the Texas Code of Criminal Procedure, see TEX. CODE CRIM. PROC. ANN. §§ 62.001-.408 (West 2018 & Supp. 2020), but stated that the age of the victim at the time of the offense was "N/A." When a defendant is convicted of an offense for which he is required to register as a sex offender under Chapter 62, the judgment is required to reflect the age of the victim. See id. art. 42.01, § 1(27). In this case, the record reflects that the victim was twelve years old at the time of the offense. Therefore, we modify the judgment adjudicating guilt to reflect that the "age of the victim at the time of the offense was twelve (12)." See Alexander v. State, No. 05-18-00784-CR, 2019 WL 3334625, at *5 (Tex. App.—Dallas July 25, 2019, no pet.) (mem. op., not designated for publication) (modifying judgment to reflect that the defendant was required to register as a sex offender and that the child was six years old at the time of the offense).
We grant counsel's motion to withdraw; modify the judgment adjudicating guilt so as to delete the $500 fine and to reflect that the victim was twelve years old at the time of the offense; and, as modified, affirm the judgment of the trial court.
PER CURIAM November 5, 2020 Do not publish. See TEX. R. APP. P. 47.2(b). Panel consists of: Bailey, C.J.,
Stretcher, J., and Wright, S.C.J. Willson, J., not participating.
Jim R. Wright, Senior Chief Justice (Retired), Court of Appeals, 11th District of Texas at Eastland, sitting by assignment.