Russell W. Hope v. the State of Texas

Opinion filed February 27, 2025

In The

Eleventh Court of Appeals
__________

No. 11-24-00121-CR
__________

RUSSELL W. HOPE, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 485th District Court
Tarrant County, Texas 1
Trial Court Cause No. 1739565

MEMORANDUM OPINION
Appellant, Russell W. Hope, was charged by indictment with the third-degree
felony offense of driving while intoxicated, which was further enhanced by two prior

1
This appeal was transferred to this court from the Second Court of Appeals pursuant to a docket
equalization order issued by the Texas Supreme Court. See TEX. GOV’T CODE ANN. § 73.001 (West Supp.
2024). We decide this case in accordance with the precedent of the Second Court of Appeals under the
principles of stare decisis. TEX. R. APP. P. 41.3.
felony convictions. See TEX. PENAL CODE ANN. §§ 12.42(d), 49.04(a), 49.09(b)(2)
(West 2019 & Supp. 2024). Due to Appellant’s habitual offender status, he faced a
punishment range of imprisonment for twenty-five years to life. See id. § 12.42(d).
Appellant pleaded guilty in exchange for the State’s waiver of one enhancement
allegation, which reduced the punishment range to two to twenty years in prison;
there was no agreement between the parties regarding a recommended sentence. See
id. § 12.42(a). The trial court accepted Appellant’s guilty plea and ordered a
presentence investigation report (PSI) to be prepared.2 At the sentencing hearing,
the State relied solely on the PSI as punishment evidence. Appellant testified, then
presented the testimony of three witnesses. Appellant attested that he was “as honest
as [he] could be” during his presentence investigation interview, “[took] full
responsibility” for his actions, and asked the trial court to place him on probation.
Upon the conclusion of the hearing, the trial court assessed Appellant’s punishment
at imprisonment for seven years in the Correctional Institutions Division of the
Texas Department of Criminal Justice.
Appellant’s court-appointed counsel has filed a motion to withdraw in this
court. The motion is supported by a brief in which counsel professionally and
conscientiously examines the record and applicable law and concludes that there are
no arguable issues to present on appeal. See Anders v. California, 386 U.S. 738
(1967). Counsel has provided Appellant with a copy of the brief, a copy of the
motion to withdraw, an explanatory letter, and a copy of the clerk’s record and
reporter’s record. Counsel also advised Appellant of his right to review the record
and file a response to counsel’s brief, and of his right to file a petition for

2
Appellant waived his right to have a court reporter transcribe the proceedings during which he
entered his guilty plea. Accordingly, there is no court reporter’s record of the plea hearing in the appellate
record. See TEX. R. APP. P. 13.1.

2
discretionary review. See TEX. R. APP. P. 68. As such, court-appointed counsel has
complied with the requirements of Anders, 386 U.S. 738; Kelly v. State, 436 S.W.3d
313 (Tex. Crim. App. 2014); In re Schulman, 252 S.W.3d 403 (Tex. Crim. App.
2008); and Stafford v. State, 813 S.W.2d 503 (Tex. Crim. App. 1991).
Appellant has not filed a pro se response to counsel’s Anders brief. Following
the procedures outlined in Anders and Schulman, we have independently reviewed
the record, and agree that the appeal is without merit.3
However, the judgment contains a nonreversible error requiring modification.
See TEX. R. APP. P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27–28 (Tex. Crim. App.
1993) (concluding that the Texas Rules of Appellate Procedure empower courts of
appeals to reform judgments); see also Rhodes v. State, 676 S.W.3d 228, 235 (Tex.
App.—Houston [14th Dist.] 2023, no pet.) (collecting cases). The trial court was
required to pronounce the sentence, including a fine, in Appellant’s presence. See
TEX. CODE CRIM. PROC. ANN. art. 42.03 (West Supp. 2024); Taylor v. State, 131
S.W.3d 497, 500 (Tex. Crim. App. 2004). Here, the trial court did not orally
pronounce a fine at sentencing, but the judgment orders Appellant to pay a $100
fine. 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). Because the trial court did not assess a fine as part
of Appellant’s sentence, we have the necessary information for reformation. We
therefore modify the trial court’s judgment to delete the $100 fine. See Taylor, 131
S.W.3d at 502.

3
Appellant has the right to file a petition for discretionary review pursuant to Rule 68 of the Texas
Rules of Appellate Procedure.

3
Accordingly, we grant counsel’s motion to withdraw, and we affirm the
judgment of the trial court as modified.

JOHN M. BAILEY
CHIEF JUSTICE

February 27, 2025
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Bailey, C.J.,
Trotter, J., and Williams, J.

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