COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 02-16-00269-CR

JAREL T. MONTEZ APPELLANT

V.

THE STATE OF TEXAS STATE

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FROM THE 43RD DISTRICT COURT OF PARKER COUNTY

TRIAL COURT NO. CR14-0763

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MEMORANDUM OPINION1

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Pursuant to a plea-bargain agreement, Appellant Jarel T. Montez pleaded 

guilty to unauthorized use of a motor vehicle. See Tex. Penal Code Ann. § 

31.07(a) (West 2016). The trial court placed him on three years’ deferred 

adjudication community supervision and ordered him to pay a $1,500 fine and

$500 as restitution. The State later filed a petition to proceed to adjudication, 

 

1See Tex. R. App. P. 47.4.
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alleging that Montez had violated six conditions of his community supervision. 

Montez pleaded “true” to all six violations. The trial court found that the six 

violations were true, adjudicated Montez guilty, and sentenced him to eighteen 

months’ confinement. The trial court’s written judgment included an order that 

Montez pay a $1,500 fine and $500 as restitution. Montez appeals from the trial 

court’s judgment of conviction and sentence. 

Montez’s court-appointed appellate counsel has filed a motion to withdraw 

as counsel and a brief in support of that motion. Counsel’s brief and motion meet 

the requirements of Anders v. California by presenting a professional evaluation 

of the record demonstrating why there are no arguable grounds for relief. See

386 U.S. 738, 87 S. Ct. 1396 (1967). In compliance with Kelly v. State, counsel 

notified Montez of the motion to withdraw, provided him a copy of the brief, 

informed him of his right to file a pro se response, informed him of his pro se right 

to seek discretionary review should this court hold that the appeal is frivolous, 

and took concrete measures to facilitate Montez’s review of the appellate record. 

436 S.W.3d 313, 319 (Tex. Crim. App. 2014). This court afforded Montez the 

opportunity to file a response on his own behalf, but he did not do so.

As the reviewing court, we must conduct an independent evaluation of the 

record to determine whether counsel is correct in determining that the appeal is 

frivolous. See Stafford v. State, 813 S.W.2d 503, 511 (Tex. Crim. App. 1991); 

Mays v. State, 904 S.W.2d 920, 923 (Tex. App.—Fort Worth 1995, no pet.). Only 
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then may we grant counsel’s motion to withdraw. See Penson v. Ohio, 488 U.S. 

75, 82–83, 109 S. Ct. 346, 351 (1988).

We have carefully reviewed the record and counsel’s brief. The record 

shows that after the trial court adjudicated Montez’s guilt, it did not include any

fine or restitution order in its oral pronouncement of Montez’s sentence. Yet the 

trial court’s written judgment adjudicating Montez’s guilt includes an order that he 

pay a $1,500 fine and $500 in restitution. 

A trial court’s pronouncement of sentence is oral, while the judgment, 

including the sentence assessed, is merely the written declaration and 

embodiment of that oral pronouncement. Alexander v. State, 301 S.W.3d 361, 

363 (Tex. App.—Fort Worth 2009, no pet.). When the oral pronouncement of 

sentence and the written judgment vary, the oral pronouncement controls. Taylor 

v. State, 131 S.W.3d 497, 500 (Tex. Crim. App. 2004); Alexander, 301 S.W.3d at 

363. The rationale for this rule is that “the imposition of sentence is the crucial 

moment when all of the parties are physically present at the sentencing hearing 

and able to hear and respond to the imposition of sentence. Once he leaves the 

courtroom, the defendant begins serving the sentence imposed.” Ex parte 

Madding, 70 S.W.3d 131, 135 (Tex. Crim. App. 2002).

When an accused receives deferred adjudication, no sentence is imposed. 

Alexander, 301 S.W.3d at 363. When the accused violates a condition of 

community supervision, the court may proceed to adjudicate guilt and to assess 

punishment. Taylor, 131 S.W.3d at 499; Alexander, 301 S.W.3d at 363. Thus, 
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when guilt is adjudicated, the order adjudicating guilt sets aside the order 

deferring adjudication, including any previously imposed fines or restitution. 

Taylor, 131 S.W.3d at 501–02; Alexander, 301 S.W.3d at 363. 

Here, the judgment adjudicating Montez’s guilt set aside the unadjudicated 

judgment previously entered by the trial court that included the requirement that 

he pay a $1,500 fine and $500 in restitution. See Taylor, 131 S.W.3d at 502; 

Alexander, 301 S.W.3d at 364. The trial court’s oral pronouncement of Montez’s 

sentence did not include any fine or restitution. Because the requirement that 

Montez pay a fine and restitution is punishment and part of his sentence in the 

judgment adjudicating his guilt, it must have been included in the trial court’s oral 

pronouncement of sentence to be properly included in the written judgment. See 

Taylor, 131 S.W.3d at 502 (holding that fine should have been deleted from 

written judgment when trial court did not orally pronounce fine during 

sentencing); Alexander, 301 S.W.3d at 364 (affirming judgment in Anders case 

with modification deleting language regarding payment of restitution). Thus, we 

modify the trial court’s judgment to delete the language regarding the payment of 

the fine and restitution.2 See Bray v. State, 179 S.W.3d 725, 726 (Tex. App.—

 

2We note that the trial court’s written judgment also includes assessments

for court costs and a legal fee reimbursement, neither of which were pronounced 

orally during sentencing. But these assessments do not need to be deleted from 

the written judgment because they are not punitive in nature. See Armstrong v. 

State, 340 S.W.3d 759, 766–67 (Tex. Crim. App. 2011) (holding that court costs 

need not be orally pronounced because they are compensatory, rather than 

punitive, in nature).
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Fort Worth 2005, no pet.) (holding that appellate court has authority to modify

judgment in an Anders case and to affirm judgment as modified).

Except for this necessary modification to the judgment, we agree with 

counsel that this appeal is wholly frivolous and without merit; we find nothing else 

in the record that arguably might support an appeal. See Bledsoe v. State, 178 

S.W.3d 824, 827–28 (Tex. Crim. App. 2005). Accordingly, we grant counsel’s 

motion to withdraw and affirm the trial court’s judgment as modified.

/s/ Sue Walker

SUE WALKER

JUSTICE

PANEL: WALKER, SUDDERTH, and KERR, JJ.

DO NOT PUBLISH

Tex. R. App. P. 47.2(b)

DELIVERED: April 6, 2017