Jarel T. Montez v. State
02-16-00269-CR
| Tex. App. | Apr 6, 2017Background
- Appellant Jarel T. Montez pleaded guilty pursuant to a plea bargain to unauthorized use of a motor vehicle and received three years’ deferred adjudication community supervision with conditions including a $1,500 fine and $500 restitution.
- The State later filed a petition to proceed to adjudication, alleging six supervision violations; Montez pleaded true to all six and the trial court adjudicated him guilty.
- Upon adjudication the trial court sentenced Montez to eighteen months’ confinement; the oral pronouncement did not include any fine or restitution.
- The written judgment adjudicating guilt, however, recited that Montez must pay the previously ordered $1,500 fine and $500 restitution (and also listed some court costs and a legal fee reimbursement).
- Appellate counsel filed an Anders brief and motion to withdraw after following Kelly procedures; Montez was given the opportunity to respond but did not. The court performed an independent review of the record.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether fines and restitution may remain in the written judgment when not orally pronounced at sentencing after adjudication | Montez: the oral sentence controls; any unpronounced punitive items cannot be imposed | State: written judgment includes fine and restitution previously ordered during deferred adjudication | Court: Modify judgment to delete fine and restitution because oral pronouncement controls and those items are punitive and were not orally pronounced |
| Whether appellate counsel properly sought withdrawal under Anders/Kelly | Counsel: complied with Anders and Kelly by providing Anders brief and notifying defendant | N/A | Court: Found counsel complied with Anders/Kelly and conducted independent review; granted withdrawal |
| Whether court costs and legal-fee reimbursement must be deleted from the written judgment when not orally pronounced | Montez: may argue all unpronounced assessments should be removed | State: such items are compensatory, not punitive, and need not be orally pronounced | Court: Court costs and legal-fee reimbursement may remain because they are compensatory, not punitive |
| Whether any other arguable appellate issues exist | Counsel: no non-frivolous issues identified | Montez: no pro se response raising issues | Court: No other arguable issues; appeal frivolous except for the clerical modification |
Key Cases Cited
- Alexander v. State, 301 S.W.3d 361 (Tex. App.—Fort Worth 2009) (written judgment is the embodiment of oral pronouncement; oral sentence controls when inconsistent)
- Taylor v. State, 131 S.W.3d 497 (Tex. Crim. App. 2004) (upon adjudication, prior deferred-adjudication orders are set aside; punitive items must be orally pronounced to appear in written judgment)
- Ex parte Madding, 70 S.W.3d 131 (Tex. Crim. App. 2002) (sentencing moment is crucial because parties are present to hear and respond)
- Anders v. California, 386 U.S. 738 (1967) (procedures for counsel to withdraw when appeal is frivolous)
- Penson v. Ohio, 488 U.S. 75 (1988) (appellate courts must independently review the record before permitting counsel to withdraw)