Reported / Citable
Background
A Hood County jury convicted Kaley Brynn Johnston of third-degree-felony possession of methamphetamine in an amount of one gram or more but less than four grams, under the Texas Health and Safety Code. The jury assessed punishment at seven years’ imprisonment in the Institutional Division of the Texas Department of Criminal Justice, within the statutory range of two to ten years for a third-degree felony. The trial court orally pronounced that sentence as assessed.
The written judgment, however, included a $1,385 restitution fee that had never been mentioned during the jury’s punishment assessment or the trial court’s oral pronouncement of sentence. Johnston’s court-appointed appellate counsel filed a motion to withdraw along with an Anders brief, representing that the appeal was frivolous. Johnston did not file a pro se response, and the State offered none either.
The Court’s Holding
The Second Court of Appeals conducted an independent review of the appellate record, as required when counsel files an Anders brief, and found only one arguable issue: the $1,385 restitution fee appearing in the written judgment without having been part of the oral pronouncement of sentence. Under well-established Texas law, when the oral pronouncement of sentence and the written judgment conflict, the oral pronouncement controls. Because the restitution fee was never orally imposed, the court held it was improperly included in the written judgment.
The court modified the judgment to delete the $1,385 restitution fee, affirmed the conviction and seven-year sentence in all other respects, and granted counsel’s motion to withdraw. Aside from the restitution issue, the court agreed that the appeal was wholly frivolous and without merit.
Key Takeaways
- A restitution fee not orally pronounced at sentencing cannot stand — the oral pronouncement of sentence controls over any conflicting written judgment.
- Appellate courts conducting Anders review retain authority to identify and correct errors in the written judgment even while finding an appeal otherwise frivolous.
- Counsel filing an Anders brief must satisfy both Anders v. California and Kelly v. State requirements, including notifying the client of rights to respond and to seek discretionary review.
Why It Matters
This decision is a routine but important reminder that sentencing in Texas is a two-step process — the oral pronouncement at the hearing is the operative act, and the written judgment merely memorializes it. Any financial obligation, including restitution, must be stated on the record in open court to be enforceable. Defendants and their counsel should carefully compare oral pronouncements against written judgments to catch discrepancies.
The case also illustrates how Anders review functions as a backstop: even when appointed counsel concludes an appeal is meritless, the court’s independent obligation to examine the record can surface errors — here, a concrete monetary one — that warrant correction before the judgment becomes final.