1 In The 

### Court of Appeals Ninth District of Texas at Beaumont

____________________ NO

. 09

- 1 3

- 00 212

- C R



### ____________________

GARY LACHOTY MOORE , Appellant

V.

THE STATE OF TEXAS , Appellee

_______________________________________________________ ______________ On A ppeal from the 252nd District Court Jefferson County, Texas Trial Cause No

. 07

- 00560

________________________________________________________ _____________ MEMORANDUM OPINION In this appeal, counsel for the appellant filed a brief stating that there are no arguable points of error that would allow the appellant
, Gary Lachoty Moore
, to

obtain relief from his conviction

. A fter reviewing the record, we conclude that no
arguable issues support Moore ’s appea l

. See Anders v. California , 386 U.S. 738
,
744 (1967)

.2 In carrying out a plea bargain agreement, Moore pled guilty to felony theft.

See Tex. Penal Code Ann. § 3 1.03 (West Supp. 2013 ). 1 Under the terms of

Moore ’s plea agreement, the trial court deferred the adjudication of Moore ’s guilt,
placed Moore on community supervision for ten years, and assessed a fine of
$ 1,500

. Subsequently, by motion, the State asked the trial court to revoke its
community s upervision order and to find Moore guilty of felony theft . After a
hearing, the trial court found that Moore violated two of the terms of its deferred
adjudication order, found that Moore was guilty of felony theft , and the trial court

then sentenced Moore to nineteen years in prison.
On appeal, Moore ’s counsel filed a brief present ing counsel’s professional

evaluation of the record ; in the brief, Moore ’s counsel concludes that Moore’s
appeal is frivolous. See Anders , 386 U.S. at 744; High v. State , 573 S.W.2d 807
(Tex. Crim. App. 1978). We granted an extension of time to allow Moore to file a

pro se brief . Moore filed a pro se brief in response.
After reviewing the appellate record, we agree with counsel’s conclusion
that no arguable issues supp ort Moore’s appeal. Consequently, we need not order

1 We cite to the current version of the statute as the subsequent amendments do not affect the outcome of this appeal.3 the appointment of new counsel to re

- brief Moore’s appeal. Cf. Stafford v. State
, 813 S.W.2d 503, 511 (Tex. Crim. App. 1991).

However, t h e State point s out the trial court’s judgment contains a clerical

error , noting that page two of the judgment appears to order the payment of a fine
even though the trial court did not orally pronounce a fine when it imposed

Moore’s sentence

. The transcript from the sentencing portion of Moore’s hearing

does not reflect the trial court pronounced a fine when it assessed Moore’s
sentence of nineteen years in prison

. Page one of t he judgment reflects that Moore was sentenced to nineteen
years in prison and that he was assessed $712 in administrative fees and $610 in

court costs. However, the second page of the judgment contains a section reciting
what the trial court ordered when it placed Moore on community supervision; in
that part of the judgment, the judgment states that the “Court assessed a fine of
$ 1, 500.00 [ .]” Then
, in a section of the judgment that appears after the trial court

grant s the State’s motion to adjudicate guilt, the judgment states: “The Court

ORDERS Defendant punished as indicated above. The Court ORDERS
Defendant to pay all fines, court costs, and restitution as indicated above.”
The order stating the defendant is to pay a fine “indicated above” creates an ambiguity regarding whether the trial court ’s final judgment include s a fine;4 nevertheless, constru ing the language as includ ing a fine appears to be a proper
construction of the judgment. The State agrees the judgment includes a fine.

A fine must be orally pronounced during sentencing for the fine to be
included as an enforceable provision in the judg ment

. See Coffey v. State , 979
S.W.2d 326, 328 (Tex. Crim. App. 1998) (“[W]hen there is a variation between the
oral pronouncement of sentence and the written memorialization of the sentence,
the oral pronouncement controls.”). Because the trial court did not orally
pronounce a fine when it sentenced Moore , the fine should not have been included
in the final written judgment. Because the fine is not enforceable, it must be
deleted from the judgment. See Taylor v. State , 131 S.W.3d 497, 502 (Tex. Crim.
App. 2004)

.
B ecause the trial court failed to orally pronounce a fine at the sentencing
hearing, we order the language in the written judgment stating that the defendant
was required to pay “all fines” or stating that the defendant was requi red to pay
“any remaining unpaid fines[]” to be deleted

. W e amend the language on the
second page of the written judgment ordering the defendant to pay “all fines” to
read: “The Court ORDERS Defendant to pay all court costs and restitution as

indicated abo ve.” We also amend the language on the second page of the written
judgment ordering the defendant to pay “ any remaining unpaid fines []” to read:5 “Once there, the Court ORDERS Defendant to pay, or make arrangement s to pay,
any remaining court costs and res t itut i on as ordered by the Court above .”
Nevertheless, the clerical errors we have ordered corrected do not raise
arguable issues concerning Moore’s guilt or his sentence of nineteen years in
prison. Because Moore cannot raise arguable issues supporting an appeal with
respect to his guilt or his prison sentence , we affirm the trial court’s judgment
, as

modified

. 2

AFFIRMED AS MODIFIED

.

_________________________ HOLLIS HORTON Justice

Submitted on November 27 , 2013 Opinion Delivered January 22, 2014 Do Not Publish

Before McKeithen, C.J., Kreger, and Horton, JJ.

2 Moore may challenge our decision in th is case by filing a petition for discretionary review. See Tex. R. App. P. 68.