MODIFY and AFFIRM; and Opinion Filed December 1, 2016.

S

In The

Court of Appeals

Fifth District of Texas at Dallas

No. 05-16-00336-CR

ANDREW MERCER, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the Criminal District Court No. 2

Dallas County, Texas

Trial Court Cause No. F12-30995-I

MEMORANDUM OPINION

Before Justices Francis, Fillmore, and Stoddart

Opinion by Justice Fillmore

Andrew Mercer appeals his conviction, following the adjudication of his guilt, for 

aggravated assault with a deadly weapon. See TEX. PENAL CODE ANN. § 22.02(a) (West 2011). 

The trial court assessed punishment at ten years’ imprisonment. On appeal, appellant’s attorney 

filed a brief in which he concludes the appeal is wholly frivolous and without merit. The brief 

meets the requirements of Anders v. California, 386 U.S. 738 (1967). The brief presents a 

professional evaluation of the record showing why, in effect, there are no arguable grounds to 

advance. See High v. State, 573 S.W.2d 807, 811–12 (Tex. Crim. App. [Panel Op.] 1978). 

Counsel delivered a copy of the brief to appellant. We advised appellant of his right to file a pro 

se response, but he did not file a pro se response. See Kelly v. State, 436 S.W.3d 313, 319–21 

(Tex. Crim. App. 2014) (identifying duties of appellate courts and counsel in Anders cases).
–2–

We have reviewed the record and counsel’s brief. See Bledsoe v. State, 178 S.W.3d 824, 

826–27 (Tex. Crim. App. 2005) (explaining appellate court’s duty in Anders cases). We agree 

the appeal is frivolous and without merit. We find nothing in the record that might arguably 

support the appeal.

Although not an arguable issue, we note the trial court’s judgment incorrectly reflects there 

was a plea bargain agreement. The record shows appellant entered an open plea of true to six 

allegations recited in the motion to adjudicate. Accordingly, on our own motion, we modify the 

section of the judgment entitled “terms of plea bargain” to state “open.” See TEX. R. APP. P. 43.2(b); 

Bigley v. State, 865 S.W.2d 26, 27–28 (Tex. Crim. App. 1993); Asberry v. State, 813 S.W.2d 526, 

529–30 (Tex. App.—Dallas 1991, pet. ref'd).

Further, the trial court’s judgment incorrectly includes a $2,500 fine that was assessed, but 

expressly probated, when appellant was initially placed on deferred community supervision. 

Following a hearing on the State’s motion to adjudicate guilt, the trial court found appellant guilty, 

adjudicated his guilt, and sentenced him to ten years’ imprisonment. The trial court did not orally 

pronounce a fine. When a variation exists between the oral pronouncement of the sentence and the 

written memorialization of the sentence, the oral pronouncement controls. See Coffey v. State, 979 

S.W.2d 326, 328 (Tex. Crim. App. 1998); see also McCoy v. State, 81 S.W.3d 917, 919 (Tex. App.—

Dallas 2002, pet. ref’d). We modify the judgment to delete the $2,500 fine. See TEX. R. APP. P.

43.2(b); Bigley, 865 S.W.2d at 27–28; Asberry, 813 S.W.2d at 529–30.

As modified, we affirm the trial court’s judgment. 

Do Not Publish

TEX. R. APP. P. 47

160336F.U05

/Robert M. Fillmore/

ROBERT M. FILLMORE

JUSTICE
–3–

Court of Appeals

S

Fifth District of Texas at Dallas

JUDGMENT

ANDREW MERCER, Appellant

No. 05-16-00336-CR V.

THE STATE OF TEXAS, Appellee

On Appeal from the Criminal District Court 

No. 2, Dallas County, Texas

Trial Court Cause No. F12-30995-I.

Opinion delivered by Justice Fillmore. 

Justices Francis and Stoddart participating.

Based on the Court’s opinion of this date, the judgment adjudicating guilt of the trial 

court is MODIFIED as follows:

The section entitled “Terms of Plea Bargain” is modified to show “Open.”

The section entitled “Fine” is modified to show “None.”

As modified, we AFFIRM the trial court’s judgment adjudicating guilt.

Judgment entered this 1st day of December, 2016.