Opinion filed June 25, 2015

In The

Eleventh Court of Appeals 

___________

Nos. 11-14-00362-CR & 11-14-00363-CR

___________

DOMINGO MARTIN CERNA, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 106th District Court

Dawson County, Texas

Trial Court Cause Nos. 07-6707 & 08-6796

M E M O R A N D U M O P I N I O N

In each cause at issue in this appeal, Appellant, Domingo Martin Cerna, 

pleaded guilty in November 2008 to the offense of burglary of a habitation. In one 

cause, the trial court convicted Appellant and, after some “shock” time, ultimately

placed Appellant on community supervision for a term of ten years; in the other 

cause, the trial court deferred a finding of guilt and placed Appellant on deferred 

adjudication community supervision for a term of ten years. In 2011, the trial 

court modified the terms and conditions of Appellant’s community supervision

based upon applications filed by the State. In May 2014, the State filed an 

application to revoke community supervision and an application to proceed with an 

adjudication of guilt. The State’s applications alleged multiple violations of the 
2

terms and conditions of community supervision. At the hearing on the 

applications, Appellant did not plead true, but he testified and admitted that he had 

violated the terms and conditions of his community supervision. The trial court 

found the alleged violations to be true, adjudicated Appellant guilty in one cause, 

revoked his community supervision in both causes, and assessed his punishment at 

confinement for a term of ten years in each cause, to run concurrently. We modify 

the judgment in one cause and dismiss both appeals.

Appellant’s court-appointed counsel has filed a motion to withdraw in both

appeals. Each motion is supported by a brief in which counsel professionally and 

conscientiously examines the record and applicable law and states that he has 

concluded that the appeal is frivolous. Counsel has provided Appellant with a 

copy of the briefs and the appellate records and has advised Appellant of his right 

to review the records and file a response to counsel’s briefs. Appellant has not

filed a pro se response in either cause.

1

Court-appointed counsel has complied with the requirements of Anders v. 

California, 386 U.S. 738 (1967); Kelly v. State, 436 S.W.3d 313 (Tex. Crim. App. 

2014); In re Schulman, 252 S.W.3d 403 (Tex. Crim. App. 2008); Stafford v. State, 

813 S.W.2d 503 (Tex. Crim. App. 1991); High v. State, 573 S.W.2d 807 (Tex. 

Crim. App. 1978); Currie v. State, 516 S.W.2d 684 (Tex. Crim. App. 1974); 

Gainous v. State, 436 S.W.2d 137 (Tex. Crim. App. 1969); and Eaden v. State, 161 

S.W.3d 173 (Tex. App.—Eastland 2005, no pet.). In addressing an Anders brief 

and pro se response, a court of appeals may only determine (1) that the appeal is 

wholly frivolous and issue an opinion explaining that it has reviewed the record 

and finds no reversible error or (2) that arguable grounds for appeal exist and 

remand the cause to the trial court so that new counsel may be appointed to brief 

 

1By letter, this court granted Appellant thirty days in which to exercise his right to file a response 

to counsel’s briefs.
3

the issues. Schulman, 252 S.W.3d at 409; Bledsoe v. State, 178 S.W.3d 824, 826–

27 (Tex. Crim. App. 2005). Following the procedures outlined in Anders and 

Schulman, we have independently reviewed the records, and we agree that the 

appeals are without merit and should be dismissed. Schulman, 252 S.W.3d at 409. 

In our review of the records, however, we note that there is a variation 

between the oral pronouncement of sentence and the written judgment in Cause 

No. 11-14-00363-CR (trial court cause no. 08-6796). The judgment includes a fine 

of $2,457.50 and restitution in the amount of $4,047.54. When the trial court 

adjudicated Appellant’s guilt in cause no. 08-6796, assessed punishment, and 

orally pronounced the sentence in open court, the trial court did not mention any

fine or restitution. The trial court was required to pronounce the sentence in 

Appellant’s presence. See TEX. CODE CRIM. PROC. ANN. art. 42.03 (West Supp. 

2014); Taylor v. State, 131 S.W.3d 497, 500 (Tex. Crim. App. 2004). When there 

is a variation between the oral pronouncement of sentence and the written 

judgment, the oral pronouncement controls. Coffey v. State, 979 S.W.2d 326, 328–

29 (Tex. Crim. App. 1998); see also Taylor, 131 S.W.3d at 500–02 (explaining the 

distinction between regular community supervision, in which sentence is imposed 

but suspended when a defendant is placed on community supervision, and 

deferred-adjudication community supervision, in which the adjudication of guilt 

and the imposition of sentence are deferred).

Because the trial court did not mention any fine or restitution when it orally 

pronounced Appellant’s sentence and because we have the necessary information 

for reformation, we modify the trial court’s judgment in cause no. 08-6796 to 

delete the fine and the restitution.2 See Taylor, 131 S.W.3d at 502 (fine); 

 

2We note that the judgment in trial court cause no. 07-6707 need not be modified even though the 

trial court did not mention the $1,450 fine during the revocation proceeding but included the fine in the 

written judgment; cause no. 07-6707 involves the revocation of regular community supervision, not 

deferred adjudication. See Taylor, 131 S.W.3d at 500; Coffey, 979 S.W.2d at 329.
4

Alexander v. State, 301 S.W.3d 361, 364 (Tex. App.—Fort Worth 2009, no pet.)

(restitution); see also Cox v. State, No. 02-13-00596-CR, 2015 WL 831544 (Tex. 

App.—Fort Worth Feb. 26, 2015, no pet.) (mem. op., not designated for 

publication); Broussard v. State, No. 14-12-00071-CR, 2012 WL 1900043 (Tex. 

App.—Houston [14th Dist.] May 24, 2012, no pet.) (mem. op., not designated for 

publication); Brasfield v. State, No. 13-08-00699-CR, 2009 WL 2929275 (Tex. 

App.—Corpus Christi Aug. 25, 2009, no pet.) (mem. op., not designated for 

publication). Other than the necessary reformation of the judgment in trial court

cause no. 08-6796, we agree with counsel that these appeals are frivolous and 

without merit. 

We note that counsel has the responsibility to advise Appellant that he may 

file a petition for discretionary review with the clerk of the Texas Court of 

Criminal Appeals seeking review by that court. TEX. R. APP. P. 48.4 (“In criminal 

cases, the attorney representing the defendant on appeal shall, within five days 

after the opinion is handed down, send his client a copy of the opinion and 

judgment, along with notification of the defendant’s right to file a pro se petition 

for discretionary review under Rule 68.”). Likewise, this court advises Appellant 

that he may file a petition for discretionary review pursuant to TEX. R. APP. P. 68.

We modify the judgment of the trial court in cause no. 08-6796 to delete the 

$2,457.50 fine and the $4,047.54 in restitution. Finding that the appeals are 

otherwise meritless, we grant counsel’s motions to withdraw and dismiss the 

appeals.

June 25, 2015 PER CURIAM

Do not publish. See TEX. R. APP. P. 47.2(b).

Panel consists of: Wright, C.J.,

Willson, J., and Bailey, J.