Opinion filed May 9 , 202 4



### In The 

# Eleventh Court of Appeals

_____ _

_____ 

### No. 11

- 23

- 00 020

- C R

_____ __ ____ 

### EDWARD TOBY GARZA , Appellant
V.
THE STATE OF TEXAS , Appellee

On Appeal from the 32nd District Court Mitchell County, Texas Trial Court Cause No

. 8157

M E M O R A N D U M O P I N I O N Appellant, Edward Toby Garza , entered an open ple a of guilty to the first

degree felony offense of continuous sexual abuse of a young child

. See T EX

. P ENAL C ODE A NN . § 2 1 .0 2 (b) , ( h ) (West Supp. 2023 ). Appellant ’s guilty plea was accepted by the trial court

. Following a punishment hearing, the trial court sentenced Appellant to punishment at confinement in the Institutional Division of the Texas Department of Criminal Jus tice for a term of fo rty

- eight years with a fine of $600

. We modify and affirm

.2 Appellant’s court

- appointed counsel has filed in this court a motion to
withdraw. The motion is supported by a brief in which counsel professionally and conscientiously examines the record and applicable law and conclude s that this appeal is frivolous and without merit

. Counsel has provided A ppellant with a copy
of the brief , a copy of the motion to withdraw, an explanatory letter, and a copy of
both the clerk’s record and the reporter’s record

. Counsel advised A ppellant of h is right to review the record and file a response to counsel’s brief and of h is right to file a pro se petition for discretionary review in order to seek review by the Texas Court of Criminal Appeals

. See T EX

. R. A PP

. P. 68. Court

- appointed counsel has complied with the requirements of Anders v. California , 386 U.S. 738 (1967);
Kel ly 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 filed a pro se response to counsel’s Anders brief. In his response, Appellant acknowledge s the impact of his actions but raises no legal issue s for our revi ew

. Following the procedures outlined in Anders and Schulman , we have independently reviewed the record, and we agree with counsel that no ar guable grounds for appeal exist. 1 We conclude, however, that the written judgment contains

a nonreversible error because the re is a variance between the oral pronouncement of Appellant’s sentence and the trial court’s written judgment. In open court, the trial court imposed a $500 fine

. Contrary to the oral pronouncement, the judgment reflects a $600 fine , which appears to include the $500 fine pronounced in open court
and the $100 fine required by Article 102.0185 of the Texas Code of Criminal

1 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.3 Procedure. T EX

. C ODE C RIM

. P ROC

. A NN

. art. 102.0185 (West Supp. 2023 ). In
addition , the trial court checked the box for “Child Abuse Prevention Fine” and added $100 to the same line in the section of the judgment entitled, “Fines Imposed
Include (check each fine and enter each amount as pronounced by the court). ” When there is a variation between the oral pronouncement of sentence and the written judgment, the oral pronouncement controls. Ex parte Madding , 70 S.W.3d 131, 135 (Tex. Crim. App. 20 02); see Coffey v. State , 979 S.W.2d 326, 328

– 29 (Tex. Crim. App. 1998) ; Wiedenfeld v. State , 450 S.W.3d 905, 907 (Tex. App.

— San Antonio 2014, no pet.)

. Because the trial court actually assessed a $ 5 00 fine, rather than a $ 600 fine, when it orally pronounced Appellant ’ s sentence and because we have the necessary information for reformation, we modify the trial court ’ s judgment to show a fine of $ 500

. See T EX

. R. A PP

. P. 43.2(b); Wi e denfeld , 450 S.W.3d at 907

– 08. We grant counsel’s motion to withdraw

. W e modify the trial court’s judgment to reflect a fine of $500 , and we delete the “X” and “$100” in the line for “Child
Abuse Prevention Fine

. ” As modified, we affirm the judgment of the trial court.

W. BRUCE WILLIAMS
JUS TICE

May 9 , 2024 Do not publish. See T EX

. R. A PP

. P. 47.2(b).
Panel consists of: Bailey, C. J., Trotter , J., and W ill iams , J.