## In The Court of Appeals Sixth Appellate District of Texas at Texarkana

No. 06

- 20

- 00072

- CR

VONDERRICK ALLEN , Appellant

V. THE STATE OF TEXAS , Appellee

On Appeal from the 102nd District Court Bowie County, Texas Trial Court No. 18F0917

- 102

Bef ore Morriss, C.J., Burgess and Stevens, JJ. Memorandum Opinion by Chief Justice Morriss2 

### ME MORANDUM OPINION
While Von derrick Allen was on community supervision, 1 t he State moved to revoke his community supervision and to proceed to an adjudication of his g uilt on allegations that he again possessed drugs and evaded arrest. A fter an evidentiary hearing, the trial court found the State’s allegations true, adjudicated Allen’s guilt, sentenced him to twenty years’ incarceration, and ordered him to pay a $2,000 .00 fine. Allen appeals. 2
Allen ’s attorney has filed a brief stat ing that he has reviewed the record and has found no genuinely arguable issues that could be raised on appeal. The brief sets out the procedural history of the case and summarizes the evidence elicited during the trial court proceedings. Since counsel has provided a professional evaluation of the record demonstrating why there are no arguable grounds to be advanced , he has met his legal obligations

. See Anders v. California , 386 U.S. 738, 743

– 44 (1967); In re Schulman , 252 S.W.3d 403, 406 (Tex. Crim. App. 2008) (orig. proceeding); Stafford v. State , 813 S.W.2d 503, 509

– 10 (Tex. Crim. App. 1991); High v. State , 573 S.W.2d 807, 812

– 13 (Tex. Crim. App. [Panel Op.] 1978). Counsel als o filed a motion with this Court seeking to withdraw as counsel in this appeal.
On September 7, 2020 , counsel mailed to Allen copies of the brief and the motion to withdraw and repre sented that he was mailing a complete paper copy of the appellate recor d by separate parcel

. Allen was informed of his rights to review the record and file a pro se response.

1 Allen had p le d guilty to possession of less than one gram of methamphetamine and admitted that the State’s punishment enhancement allegations against him were true. Pursuant to a plea agreement, Allen was place d on deferred adjudication c ommunity supervision for a p er i od of ten years.

2 In our companion ca u se number 06

- 20

- 00074

- CR, Allen also appeals from another conviction of possession of less than one gram of methamphetamine. We dispose of that appeal by sepa rate opinion

.3

By letter dated September 8, 2020 , this Court informed Allen that any motion fo r pro se access to the appellate record was due on or before October 8 , that his pro se brief was due on or before December 4, and that the case would be set for submission on the brief s on December 30

. We received neither a pro se response from Allen nor a m otion requesting an extension of time in which to file such a respons e. We have reviewed the entire appellate record and have independently determined that no reversible error exists. See Bledsoe v. State , 178 S.W.3d 824, 826

– 27 (Tex. Crim. App. 2005)

. H o wever, we find non reversible error s described below. The trial court did not pronounce a fine during sentencing, but a $2 ,00 0.00 fine was included in the trial court’s judgment. The judgment also mistakenly states that Allen’s offense
is a second

- deg re e felony , instead of a state

- jail felony, and refl ects that the trial court’s sentence was the result of a plea agreement during the adjudication. I n Anders cases, appellate courts “have the authority to reform judgments and affirm as modified in ca ses w h er e there is nonreversible error.” Ferguson v. St ate , 435 S.W.3d 291, 294 (Tex. App.

— Waco 2014, pet. struck) (comprehensively discussing appellate cases that have modified judgments in Anders cases). First, we must modify the trial court’s judgm ent by d e let ing the $2,000.00 fine. Because fines are punitiv e and intended to be a part of the defendant ’ s sentence, they “generally must be orally pronounced in the defendant ’ s presence.” Armstrong v. State , 340 S.W.3d 759, 767 (Tex. Crim. A pp. 2011) (citing T EX
. C ODE C RIM
. P ROC
. A NN
. art. 42.03, § 1(a); Taylor v . State , 131 S.W.3d 497, 500 (Tex. Crim. App. 2004)). When there is a conflict between the oral4

pronouncement of sentence in open court and the written judgment, the oral pronounceme nt
contro ls. See T

ayl o r v. State , 131 S.W.3d 497, 502 (Tex. Crim. App. 2 004) (citing Thompson v.
State , 108 S.W.3d 287, 290 (Tex. Crim. App. 2003)). Second, possession of less than one gram of methamphetamine is a state

- jail felony.
T EX
. H EALTH & S AFETY C ODE A NN
. § 481.115 (b)

. Due to the State’s punishment enhancement allegations, Allen’s state

- jail felony became punishable as a second

- degree felony. See T EX
. P ENAL C ODE A NN
. § 12.425(b). Even so, “statutes enhancing punishment ranges for the primary
offense d o ‘not incre ase the severity level or grade of the primary offense.’” Bledsoe v. State , 480 S.W.3d 638, 642 n.11 (Tex. App.

— Texarkana 2015, pet. ref’d) (quoting Ford v. State , 334 S.W.3d 230, 234 (Tex. Crim. App. 2011)). As a result, although th e State’s punishment enh a ncement allegations elevated Allen’s range of punishment, the degree of offense remained the same. We, therefore, modify the trial court’s judgment to reflect that Allen was convicted of

a state

- jail felony. Third, under a sectio n labeled “Terms of P l ea B argain,” the judgment states, “ TWENTY (20) YEARS TEXAS DEPARTMENT OF CRIMINAL JUSTICE INSTITUTIONAL DIVISION; TO RUN CONCURRENTLY WITH 19F0184

- 102

. ” Allen’s twenty

- year sentence was not the result of a plea agree ment. Therefore, we delete t his langua ge f rom the “Terms of Plea Bargain” section and place it instead under the section of the judgment labeled “Punishment
and Place of Confinement

. ” We modify the trial court’s judgment by deleting the $2,000.0 0 fine, to reflect that
A ll en’s offense is a sta t e - j ail felony, not a second

- degree felony, and by removing the language5

stating , “ TWENTY (20) YEARS TEXAS DEPARTMENT OF CRIMINAL JUSTICE INSTITUTIONAL DIVISION; TO RUN CONCURRENTLY WITH 19F0184

- 102” from the “Terms of Plea Bargain” sec tion and placing it un de r the “Punishment and Place of Confinement” section. As modified, the judgment of the trial court is affirmed

. 3

J osh R. Morriss, III Chief Justice Date Submitted: December 30, 2020 Date Decided: January 7, 2021
Do Not Publish

3 Since we agre e that this case presents no r e v ersible error, we also, in accordance with Anders , grant counsel’s request to withdraw from further representation of appellant in this case. See Anders , 386 U.S. at 744.  No substitute counsel will be appointed.  Should appellant desire to seek fur th er r eview of this case by the Texas Court of Criminal Appeals, appellant must either retain an attorney to file a petition for discretionary review or file a pro se petition for discretionary review.  Any petition for discretionary review (1) must be fil ed w i t hin thirty days from either the date of this opinion or the date on which the last timely motion for rehearing was overruled by this Court, see T EX
. R. A PP
. P. 68.2, (2) must be filed with the clerk of the Texas Court of Criminal Appeals, see T EX
. R. A PP
. P. 68.3, and (3) should comply with the requirements of Rule 68.4 of the Texas Rules of Appellate Pr ocedure, see T EX
. R. A PP
. P. 68.4.