Cedriz Alphonso Berkley, Jr. v. State ( 2012 )

NO. 07-11-0264-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL A
JULY 13, 2012
______________________________
CEDRIZ ALPHONSO BERKLEY, JR., APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
_________________________________
FROM THE 27TH DISTRICT COURT OF BELL COUNTY;
NO. 66,650; HONORABLE JOE CARROLL, JUDGE
_______________________________
Before CAMPBELL and HANCOCK and PIRTLE, JJ.
MEMORANDUM OPINION
Appellant, Cedriz Alphonso Berkley, Jr., pled guilty in open court to aggravated
assault with a deadly weapon.1 He was sentenced to fifteen years confinement. In a
single issue, Appellant asserts the trial court erred by including in its written judgment a
requirement that he pay $26,383.94 in restitution when the trial court’s oral sentencing
pronouncement did not refer to the payment of any restitution. The State, with
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See Tex. Penal Code Ann. § 22.02(a)(2) (West 2011).
commendable candor, concedes the trial court erred and asks this Court to modify the
judgment by deleting the order for payment of restitution.
The record reflects that, at a punishment and sentencing hearing held on May
12, 2011, the trial court pronounced that Appellant was sentenced to fifteen years
confinement without any mention of restitution. The statute authorizing restitution, Tex.
Code Crim. Proc. Ann. art. 42.037(a) (West Supp. 2011) provides that a trial court may
order a convicted defendant to make restitution to a victim of the offense "[i]n addition to
any fine imposed by law." An order to pay restitution is part of the convicted
defendant's punishment. Weir v. State, 278 S.W.3d 364, 366 (Tex.Crim.App. 2009); Ex
parte Cavazos, 203 S.W.3d 333, 338 (Tex.Crim.App. 2006) (original proceeding); Cabla
v. State, 6 S.W.3d 543, 545 (Tex.Crim.App. 1999). A defendant’s sentence must be
pronounced in the defendant’s presence. Tex. Code Crim. Proc. Ann. art. 42.03(a)
(West Supp. 2011). When the oral pronouncement of sentence and the written
judgment differ, the oral pronouncement controls. Ex parte Huskins, 176 S.W.3d 818,
820 (Tex.Crim.App. 2005). Therefore, an order of restitution must be included in the
oral pronouncement of sentence to be included in the written judgment. Lane v. State,
No. 12-11-00071-CR, 2012 Tex.App. LEXIS 3389, at *5-6 (Tex.App.--Tyler April 30,
2012, no pet.) (not designated for publication); Sauceda v. State, 309 S.W.3d 767, 769
(Tex.App.—Amarillo 2010, pet. ref’d); Alexander v. State, 301 S.W.3d 361, 364
(Tex.App.--Fort Worth 2009, no pet.). Because the trial court did not include restitution
in its oral pronouncement of sentence, it could not assess restitution in its written
judgment. Accordingly, we find the trial court erred and “the proper remedy is to
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modify the judgment to delete the order of restitution.” Sauceda, 309 S.W.3d at 769.
Appellant’s single issue is sustained.
Conclusion
The trial court’s judgment is modified to delete the portion requiring restitution
and, in all other respects, the judgment is affirmed.
Patrick A. Pirtle
Justice
Do not publish.
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