COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 02-14-00147-CR

KEVIN WADE NOONKESTER APPELLANT

V.

THE STATE OF TEXAS STATE

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FROM THE 355TH DISTRICT COURT OF HOOD COUNTY

TRIAL COURT NO. CR10809

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MEMORANDUM OPINION1

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Appellant Kevin Wade Noonkester appeals the trial court’s judgment 

adjudicating him guilty of sexual assault of a child and sentencing him to fifteen 

years’ confinement. See Tex. Penal Code Ann. §§ 12.33(a), 22.011 (West 

2011).

 

1See Tex. R. App. P. 47.4.
2

Noonkester’s court-appointed appellate counsel has filed a motion to 

withdraw as counsel and a brief in support of that motion. Counsel’s brief and 

motion meet the requirements of Anders v. California by presenting a 

professional evaluation of the record demonstrating why there are no arguable 

grounds for relief. 386 U.S. 738, 87 S. Ct. 1396 (1967). Noonkester filed a 

motion contesting his appointed counsel’s motion to withdraw and requesting 

appointment of new counsel to assist him; he subsequently filed a pro se brief. 

The State did not file a brief.

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, 922–23 (Tex. App.—Fort Worth 1995, no pet.). 

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).

We have carefully reviewed the record, counsel’s brief, and Noonkester’s 

pro se brief and have determined that the trial court’s judgment requires 

correction with regard to (1) the list of allegations to which Noonkester pled true 

during the revocation hearing and found true by the trial court; (2) the 

assessment of a $1,500 fine in the judgment adjudicating guilt; (3) the 

assessment of $400 in appointed counsel fees as part of the $915 in court costs 

in the judgment; (4) the listing of $3,000 as a fine in the bill of costs; and (5) the 

listing of $2,415 as costs in the order to withdraw funds from Noonkester’s 
3

inmate trust account. We may modify the judgment in an Anders appeal and 

affirm the judgment as modified. Bray v. State, 179 S.W.3d 725, 726 (Tex. 

App.—Fort Worth 2005, no pet.) (en banc). 

At the revocation hearing, Noonkester pled “true” to the allegations set out 

in paragraphs A, B, E, G, H, I, and J of the State’s motion and “not true” to 

paragraphs C, D, and F.2Therefore, the trial court’s judgment adjudicating guilt, 

which reflects that Noonkester generally pled “true” to the motion to adjudicate, is 

incomplete as to the specific allegations to which Noonkester pled true. We 

reform the trial court’s judgment to reflect that Noonkester pled “true” to the 

allegations set out in paragraphs A, B, E, G, H, I, and J of the State’s motion and 

“not true” to the allegations set out in paragraphs C, D, and F.

Additionally, at the revocation hearing, the trial court found true the 

allegations set out in the State’s paragraphs A, B, C, D, E, G, H, I, and J.

However, the judgment adjudicating guilt reflects that the trial court found all of 

the allegations, including paragraph F, true. Further, the trial court did not 

 

2

In his single pro se point, Noonkester contends that the evidence is 

insufficient to show that he violated the conditions of his community supervision. 

However, Noonkester pled true to several of the State’s allegations in its motion 

to revoke his community supervision, see Cole v. State, 578 S.W.2d 127, 128 

(Tex. Crim. App. 1979) (“This Court has previously held that the sufficiency of the 

evidence could not be challenged in the face of a plea of true.”), and there is 

evidence in the record to support the State’s allegations. Proof by a 

preponderance of the evidence of any one of the alleged violations of the 

conditions of community supervision is sufficient to support a revocation order. 

Hacker v. State, 389 S.W.3d 860, 864–65 (Tex. Crim. App. 2013); Moore v. 

State, 605 S.W.2d 924, 926 (Tex. Crim. App. [Panel Op.] 1980).
4

assess a fine during its oral pronouncement of Noonkester’s sentence, but the 

judgment adjudicating guilt includes a $1,500 fine, and the June 25, 2014 bill of 

costs prepared by the Hood County District Clerk reflects that Noonkester was 

charged $3,000 in “Criminal Fines.”

3

When guilt is adjudicated upon a violation of a condition of community 

supervision, the order adjudicating guilt sets aside the order deferring 

adjudication, including any previously imposed fines. Taylor v. State, 131 

S.W.3d 497, 501–02 (Tex. Crim. App. 2004) (reasoning that appellant was not 

sentenced until his guilt was adjudicated and that the trial court was required to 

orally pronounce fine during sentencing); see also Armstrong v. State, 340 

S.W.3d 759, 767 (Tex. Crim. App. 2011) (noting that fines are punitive). And 

when the oral pronouncement of sentence and the written judgment vary, the oral 

pronouncement controls. Taylor, 131 S.W.3d at 500, 502. An appellate court

may correct a trial court’s written judgment so that it conforms to the oral 

pronouncement of the findings supporting revocation and adjudication. See id.; 

Smith v. State, 290 S.W.3d 368, 377 (Tex. App.—Houston [14th Dist.] 2009, pet. 

ref’d); see also Tex. R. App. P. 43.2(b). We reform the trial court’s judgment by 

deleting paragraph F from the list of violations found true by the trial court, and 

 

3

The original order of deferred adjudication reflected that Noonkester pled 

guilty in exchange for an assessment of a $1,500 fine and court costs; eight 

years’ deferred adjudication community supervision; 500 hours of community 

service; and other terms and conditions. The trial court’s order of deferred 

adjudication mirrored the plea bargain agreement and specified that the fine was 

not suspended and that Noonkester owed $450 in court costs.
5

because the trial court did not include the fine previously assessed in its order 

deferring adjudication in its oral pronouncement of sentence at the revocation 

hearing, we reform the judgment adjudicating guilt to delete the $1,500 fine, and 

we delete the $3,000 fine listed in the bill of costs. See Taylor, 131 S.W.3d at 

502; see also Washington v. State, No. 02-11-00152-CR, 2012 WL 1345743, at 

*1–2 (Tex. App.—Fort Worth Apr. 19, 2012, no pet.) (mem. op., not designated 

for publication) (reforming judgment adjudicating guilt to delete language 

regarding payment of the portion of reparations made up of fines that had been 

previously assessed in the order deferring adjudication and that had not been 

included in the trial court’s oral pronouncement of sentence); Boyd v. State, No. 

02-11-00035-CR, 2012 WL 1345751, at *1–2 (Tex. App.—Fort Worth Apr. 19, 

2012, no pet.) (mem. op., not designated for publication) (same). 

The clerk’s bill of costs also reflects that Noonkester was charged $400 for 

a court-appointed attorney. For purposes of assessing attorney’s fees, once an 

accused is found to be indigent, he is presumed to remain so throughout the 

proceedings absent proof of a material change in his circumstances. See Tex. 

Code Crim. Proc. Ann. art. 26.04(p) (West Supp. 2014); Wiley v. State, 410 

S.W.3d 313, 317 (Tex. Crim. App. 2013); Mayer v. State, 309 S.W.3d 552, 557 

(Tex. Crim. App. 2010). Furthermore, the record must reflect some factual basis 

to support the determination that the appellant was capable of paying all or some 

of his attorney’s fees at the time of the judgment. See Tex. Code Crim. Proc. 

Ann. art. 26.05(g) (West Supp. 2014); Wiley, 410 S.W.3d at 317 (“[I]n the 
6

absence of any indication in the record that [an indigent defendant’s] financial 

status has in fact changed, the evidence will not support an imposition of attorney 

fees.”). When the record does not contain a factual basis to support imposition of 

attorney’s fees, the proper remedy is to delete it. Cates v. State, 402 S.W.3d 

250, 251–52 (Tex. Crim. App. 2013).

Noonkester applied for appointed counsel before the revocation hearing

and attached a declaration of financial inability to employ counsel in which he 

listed no assets or income. The trial court entered an order appointing counsel 

for Noonkester, and at the revocation hearing, Noonkester testified that he was 

not financially stable, and his mother testified that he did not have the financial 

ability to pay large sums of money. The trial court subsequently entered another 

order appointing counsel for Noonkester for this appeal after finding him indigent.

Because the record does not contain a factual basis to support the imposition of 

$400 in attorney’s fees in the clerk’s bill of costs, we delete this amount and order 

the clerk to recalculate Noonkester’s total bill of costs less the $3,000 fine and 

the $400 charge for attorney’s fees.

The trial court’s order to withdraw funds from Noonkester’s inmate trust 

account, incorporated by reference into the judgment, listed $2,415 as the 

amount of “court costs, fees and/or fines and/or restitution” incurred by 

Noonkester. However, as set out above, because we have modified the 

judgment to delete the $1,500 fine and $400 of the court costs, we reform the 

withdrawal order to reflect $515 instead of $2,415.
7

Except for these necessary modifications to the judgment, we agree with 

counsel that this appeal is wholly frivolous and without merit; we find nothing else 

in the record that might arguably support the 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 deny Noonkester’s motion 

for appointment of new counsel, grant counsel’s motion to withdraw, and affirm 

the trial court’s judgment as modified.

/s/ Anne Gardner

ANNE GARDNER

JUSTICE

PANEL: LIVINGSTON, C.J.; GARDNER and GABRIEL, JJ.

DO NOT PUBLISH

Tex. R. App. P. 47.2(b)

DELIVERED: February 26, 2015