John Michael King v. State ( 2005 )

In The

Court of Appeals

For The

First District of Texas  

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NO. 01-05-00295-CR

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JOHN MICHAEL KING, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the 262nd District Court

Harris County, Texas

Trial Court Cause No. 932443

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  MEMORANDUM OPINION  

          Appellant, John Michael King, pleaded guilty to the offense of indecency with a child.   The trial court deferred adjudication of guilt, placed appellant on community supervision for ten years, and assessed a fine in the amount of $1,000. Subsequently, the State filed a motion to adjudicate guilt and the trial court, after finding true the allegations in the motion that appellant had violated the terms of his community supervision, found appellant guilty and assessed his punishment at confinement for ten years. In one issue, appellant contends that the trial court erred in including a fine in the judgment adjudicating guilt. We reform the judgment and affirm as modified.  Procedural Background

          Appellant entered a plea of not true to the allegations set forth in the State’s motion to adjudicate his guilt. After hearing testimony and argument on the State’s motion, the trial court found the allegations in the motion to be true, revoked appellant’s community supervision, and adjudicated appellant guilty “as originally charged.”

          During the punishment phase, in pronouncing appellant’s sentence, the trial court stated:

[I]t is hereby the judgment of the Court that you be delivered to the Director of the Texas Department of Criminal Justice Institutional Division where you will serve 10 years confinement in accordance with the laws of the State of Texas.

The clerk’s record contains the trial court’s “Judgment Adjudicating Guilt” which, in addition to the punishment of confinement for ten years pronounced by the trial court, imposed a fine of $1,000.

Reformation of Judgment

          Appellant argues that the trial court erred in including a fine in the judgment because the trial court did not pronounce a fine at sentencing. The State argues this Court “should modify the judgment to delete the fine.”

          The Court of Criminal Appeals has explained that when the trial court adjudicates guilt, its new order sets aside the previous order deferring adjudication, including any previously imposed fine. Taylor v. State, 131 S.W.3d 497, 502 (Tex. Crim. App. 2004). Thus, the trial court’s original order deferring adjudication of appellant’s guilt and imposing a $1,000 fine was set aside by its subsequent judgment adjudicating appellant’s guilt.

          A defendant’s sentence must be pronounced orally in a defendant’s presence. Tex. Code Crim. Proc. Ann. art. 42.03. The sentence and judgment merely memorialize the oral pronouncement. Tex. Code Crim. Proc. Ann. art. 42.01 § 1; Taylor, 131 S.W.3d at 500. When there is a conflict between the oral pronouncement of a sentence and the sentence in the written judgment, the oral pronouncement controls. Taylor, 131 S.W.3d at 500; Coffey v. State, 979 S.W.2d 326, 328 (Tex. Crim. App. 1998).

          Here, although the judgment adjudicating guilt assessed a $1,000 fine, the reporter’s record shows that the trial court did not orally pronounce a fine in appellant’s presence at the sentencing hearing. “An appellate court has the power to correct and reform a trial court judgment to make the record speak the truth when it has the necessary data and information to do so.” Nolan v. State, 39 S.W.3d 697, 698 (Tex. App.—Houston [1st Dist.] 2001, no pet.); see also Tex. R. App. P. 43.2(b).

ConclusionAccordingly, we modify the judgment to delete the reference to the $1,000 fine and reflect the trial court’s oral pronouncement of confinement for ten years in the Texas Department of Criminal Justice, Institutional Division.

          We affirm the judgment of the trial court as modified.

     Terry Jennings

     Justice

Panel consists of Justices Nuchia, Jennings, and Higley

Do not publish. Tex. R. App. P. 47.2(b)