Kynard Dewayne Hobbs v. State ( 2006 )

In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

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No. 06-05-00254-CR

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KYNARD DEWAYNE HOBBS, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the 282nd Judicial District Court

Dallas County, Texas

Trial Court No. F04-54135-TS

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Before Morriss, C.J., Ross and Carter, JJ.

Memorandum Opinion by Justice Carter

MEMORANDUM OPINION

            In February 2005, Kynard Dewayne Hobbs pled guilty to the State's charges of arson with intent  to  damage  or  destroy  a  habitation,  a  first-degree  felony.  See  Tex.  Pen.  Code  Ann. § 28.02(d)(2) (Vernon Supp. 2005). The trial court placed Hobbs on deferred adjudication community supervision for five years and assessed a fine of $2,500.00. On August 12, 2005, the State moved to proceed with an adjudication of guilt, alleging that Hobbs violated several of the conditions of his community supervision.

            Hobbs pled not true to the State's allegations. The State presented evidence concerning the various violations of the terms of community supervision. Hobbs testified in his own defense and denied most of the allegations. He admitted to possessing a double-edged dagger, but claimed that he used it in connection with his occupation for cutting weed-eater twine. At the close of evidence, the trial court determined the evidence presented substantiated a finding of true to the State's allegations and found Hobbs guilty of arson.

            Hobbs did not present evidence at the punishment phase. The trial court orally pronounced punishment at forty years' confinement. In its written judgment, the trial court also assessed a fine of $1,325.00, a fine that, by all accounts, was not included in the trial court's oral pronouncement.

            In his sole issue on appeal, Hobbs contends the trial court's imposition of a fine in its written judgment is improper since the trial court did not include such fine in its oral pronouncement. The State concedes this issue, and we agree.

            The trial court is required to pronounce the sentence imposed in open court and in the presence of the defendant. See Tex. Code Crim. Proc. Ann. art. 42.03, § 1(a) (Vernon Supp. 2005). Where there is a variation between the oral pronouncement and the written judgment, the oral pronouncement controls. See Taylor v. State, 131 S.W.3d 497, 500 (Tex. Crim. App. 2004); Abron v. State, 997 S.W.2d 281, 282 (Tex. App.—Dallas 1998, pet. ref'd). The written judgment's imposition of a fine is, therefore, invalid since no fine was orally pronounced against Hobbs.

            Hobbs asks this Court to reform the judgment to delete the fine imposed. When an error can be corrected by modifying a judgment, we may modify a trial court's judgment and affirm the judgment as modified. See Tex. R. App. P. 43.2(b); Hankins v. State, 180 S.W.3d 177, 183 (Tex. App.—Austin 2005, pet. ref'd).

            We, therefore, delete the imposition of the $1,325.00 fine from the trial court's written judgment adjudicating guilt and affirm the judgment as modified.

                                                                                    Jack Carter

                                                                                    Justice

Date Submitted:          March 15, 200

Date Decided:             April 26, 2006

Do Not Publish

M>, 701 S.W.2d at 241-42. As a result, the trial court did not commit error by admitting the testimony.

IV.

Conclusion

Based on the foregoing, we affirm the trial court's judgment.

Josh R. Morriss, III

Chief Justice

Date Submitted: September 6, 2002

Date Decided: November 1, 2002

Do Not Publish

1. Allegedly, Larry instructed a friend that, in the event of his death, Carolyn was to retrieve certain documents from his home, including the alleged 1998 will, and deliver them to his sister and the attorney.