Billie D. Washington v. State ( 2013 )


Menu:
  • Opinion issued October 10, 2013
    In The
    Court of Appeals
    For The
    First District of Texas
    ————————————
    NO. 01-11-00093-CR
    ———————————
    BILLIE DEAN WASHINGTON, Appellant
    V.
    THE STATE OF TEXAS, Appellee
    On Appeal from the 351st District Court
    Harris County, Texas
    Trial Court Case No. 1085638
    MEMORANDUM OPINION
    This is an appeal from an adjudication of guilt and sentence following a
    violation of terms of community supervision. We reform the judgment to delete
    the assessment of a $10,000 fine and otherwise affirm the judgment.
    BACKGROUND
    In November 2008, appellant Billie Dean Washington pleaded guilty to
    sexual assault of a child and was placed on deferred adjudication for ten years
    pursuant to a plea agreement. In November 2010, the State filed a Motion to
    Adjudicate Guilt, based upon several violations of the conditions of his community
    supervision, under cause number 1085638. Among these violations alleged was a
    failure to comply with the Sex Offender Registration Act and a violation of the
    requirement that he commits no offense under the laws of the State.
    In this cause number 1085638 (“Adjudication Case”), appellant signed a
    Stipulation of Evidence agreeing that he “violated the terms and conditions of my
    probation and that the allegations of the attached State’s Motion [to Adjudicate
    Guilt] are TRUE.” The stipulation provided that the range of punishment for this
    offense is 2–20 years’ confinement, and noted that the stipulation was made
    without an agreed recommendation concerning punishment. Finally, as part of the
    same document, appellant waived any right to appeal.
    In a separate case, c 1284692 (“Registration Case”), appellant was charged
    with the offense of violating the Sex Offender Registration Act. In that case, he
    also pleaded guilty, but with an agreed sentence of two years’ confinement and no
    fine.   He waived any right to appeal if the court accepted the terms of the
    agreement.
    2
    The Adjudication Case and the Registration Case were heard together. The
    court first questioned appellant about his plea in each case separately, verifying
    that the pleas were made voluntarily and because he had actually committed the
    acts forming the bases of the State’s claims in each. Then the court moved on to
    punishment:
    THE COURT: It says here in the paperwork there is no
    agreement between you and the State as to what the punishment
    should be on the motion to adjudicate. Is that true?
    THE DEFENDANT: Yes.
    THE COURT: And on the new case it says that you’ve agreed
    to 2 years confinement with credit for your back time. Did you agree
    to that?
    THE DEFENDANT: Yes, sir, I did.
    ....
    THE COURT: On the new case based on your plea of guilty
    and on the papers that you filed, I will find you guilty, I will follow the
    plea bargain. When I do that, you give up your right to appeal
    without my permission on that case. Do you understand that?
    THE DEFENDANT: Yes.
    THE COURT: All right. So, what do you have to say?
    THE DEFENDANT: I just want to apologize to the Court that I
    put you-all through this, but I didn’t have another choice but to get out
    of the Star Court. Me and one of the staff members got into it. Either
    he hurt me or I hurt him. Everybody there were — well, glad that I
    work in there and I worked there for the whole 90 days I was there
    and didn’t nobody have a problem with it, but this one guy, and he
    wanted to come onto me and fight me and I backed down from him,
    which is something I don’t usually do, but I did because I was on
    probation. After they started telling us that all sex offenders had to
    vacate the building at a certain time, that’s when I started wandering,
    trying to find a place to go to when I got the opportunity to find a
    3
    place, I jumped on it. And, really, I did not (inaudible). After I
    started looking for a place, I was just so glad to get out of there.
    DEFENSE COUNSEL: How is your health?
    THE DEFENDANT: My health is really bad. I’ve got a bad
    heart. Blood pressure is real bad, bad leg, bad back, and look like I
    just falling apart. I take 12 kinds — different kind of medication and I
    have them written out back there in my cell block to prove it.
    THE COURT: Anything else?
    THE DEFENDANT: That’s about it, sir.
    THE COURT: Mr. Washington, my only regret in this situation
    is that I did not give you life in prison. I’m going to sentence you to
    20 years confinement. I’m going to find you guilty. I hope you die in
    prison. You raped your granddaughter for years and you’re a
    monster, so I’m glad you’re in prison. I hope you never get out.
    See the bailiff.
    Find it true, revoke his probation, find him guilty, assess 20
    years confinement, credit for his back time.
    (Emphasis supplied.)
    The court signed a Judgment Adjudicating Guilt, specifying as “Terms of
    Plea Bargain”: “20 YEARS TDC WITH A $10,000 FINE.” The Judgment also
    stated: “APPEAL WAIVED, NO PERMISSION TO APPEAL GRANTED.”
    Finally, the trial court indicated on a separate “certification of defendant’s right of
    appeal” that “the defendant has waived the right of appeal.”
    A. Prior Appeal
    Appellant filed a pro se notice of appeal. Citing the appeals waiver that
    appellant signed, as well as the trial court’s certification stating that appellant had
    waived his right of appeal, we dismissed his appeal for want of jurisdiction.
    4
    Because the record did not support the State’s assertion that the State gave
    appellant any consideration for the waiver of his appellate rights with regard to the
    Adjudication Case, the Court of Criminal Appeals reversed, holding that the
    waiver as to sentencing related to the Adjudication Case was not enforceable and
    remanded to this Court for further proceedings. Washington v. State, 
    363 S.W.3d 589
    , 589–90 (Tex. Crim. App. 2012).
    ISSUES ON APPEALAppellant raises three issues:
    1. “The trial court abused its discretion by failing to consider the full
    range of punishment before sentencing Mr. Washington to the
    maximum available sentence, thereby violating his right to due
    process under the Fifth and Fourteenth Amendment to the United
    States Constitution and Art. 1, § 10 of the Texas Constitution.”
    2. “The trial court abused its discretion by depriving Mr. Washington
    of a punishment hearing after adjudicating him, thereby violating
    his right to due process under the Fifth and Fourteenth
    Amendments to the United States Constitution and Art. 1, § 10 of
    the Texas Constitution.”
    3. “The trial court erred in adding a $10,000 fine to the judgment
    after he had pronounced the sentence in open court as simply “20
    years confinement.”
    NO PUNISHMENT HEARING
    In his second issue, appellant argues that the trial court’s sentencing him
    before he adjudicated him, without affording him a separate punishment hearing or
    an opportunity to present evidence, denied him his right to due process and entitles
    him to a new sentencing hearing. See TEX. CODE OF CRIM. PROC. ANN. art. 42.12,
    5
    § 5(b) (“After an adjudication of guilt, all proceedings, including assessment of
    punishment . . . continue as if the adjudication of guilt had not been deferred”);
    Issa v. State, 
    826 S.W.2d 159
    , 161 (Tex. Crim. App. 1992) (“[B]ased upon the
    statute, the defendant is entitled to a punishment hearing after the adjudication of
    guilt, and the trial judge must allow the accused the opportunity to present
    evidence.”).
    Appellant also contends that this error has not been waived for failure to
    object, as he was not given an opportunity to object at the adjudication hearing.
    See 
    Issa, 826 S.W.3d at 161
    (holding that complaint about the lack of a punishment
    hearing, raised for the first time in a motion for new trial, was not waived under the
    contemporaneous-objection rule because “the record reflects that the trial court in
    one proclamation” revoked defendant’s probation, entered a finding of
    adjudication, and sentencing him, which did not afford appellant the “opportunity
    to object”). Finally, appellant asserts that he “was not afforded the opportunity to
    file a motion for new trial because he was without counsel during the 30-day
    period between the judgment . . . [and] timely pro se notice of appeal.” His notice
    of appeal stated,
    Appellant, being indigent, prays for the setting of APPEAL BOND,
    and NOT BEING REPRESENTED BY COUNSEL SINCE
    SENTENCING also prays for the APPOINTMENT OF APPELLATE
    COUNSEL.
    6
    Appellant acknowledges that there is “no record that trial counsel filed a motion to
    withdraw,” but notes that the stipulation signed by appellant and trial counsel
    indicated that appellant waived his right to appeal, so trial counsel “had no reason
    to believe at the conclusion of the proceedings that [appellant] had any appellate
    rights on which to advise him.”
    The State responds that appellant waived this argument by failing to make it
    in a motion for new trial. It points out that there is no record of appellant’s counsel
    withdrawing, and emphasizes the presumption that trial counsel continued to
    effectively represent appellant during the window for filing a motion for new trial.
    E.g., Oldham v. State, 
    977 S.W.2d 354
    , 363 (Tex. Crim. App. 1998) (“When a
    motion for new trial is not filed in a case, the rebuttable presumption is that it was
    considered by the appellant and rejected.”).        While acknowledging that this
    presumption is rebuttable, the State asserts that appellant’s arguments fall short of
    what is required to demonstrate that he was not effectively represented.
    In any event, the State contends, the appellant received all that was required,
    i.e., “an opportunity to offer” evidence in mitigation of punishment. 
    Pearson, 994 S.W.2d at 179
    (“It is immaterial that the opportunity to present evidence came
    before the actual words of adjudication.”).       Because appellant was given the
    opportunity to speak about why he committed the new violation, i.e., failure to
    7
    report his new address, the State contends that he effectively received a
    punishment hearing.
    A. Applicable Law
    The Texas Code of Criminal Procedure provides that a punishment hearing
    shall be conducted following a deferred adjudication of guilt as it would in a case
    in which in adjudication had not been deferred.
    After an adjudication of guilt, all proceedings, including assessment
    of punishment, pronouncement of sentence, granting of community
    supervision, and defendant’s appeal continue as if the adjudication of
    guilt had not been deferred.
    TEX. CODE. CRIM. PROC. ANN. art. 42.12, § 5(b). A defendant must be given the
    opportunity to present evidence relevant to punishment before he or she is
    sentenced after probation, i.e., community supervision, is revoked. Duhart v.
    State, 
    668 S.W.2d 384
    , 387 (Tex. Crim. App. 1984); see also 
    Issa, 826 S.W.2d at 162
    (“The defendant is entitled to a punishment hearing after the adjudication of
    guilt, and the trial judge must allow the accused the opportunity to present
    evidence. The trial court in the instant cause erred in not so doing.”)
    The Court of Criminal Appeals has taken a pragmatic approach to
    procedural challenges relating to punishment-stage evidence, focusing on whether
    the defendant has been afforded a full opportunity to present such evidence rather
    than focusing on the timing of the introduction of the evidence. See Pearson v.
    
    State, 994 S.W.2d at 176
    179 (holding there was no error in assessing punishment
    8
    immediately after adjudicating guilt because, during the adjudication hearing, the
    defendant “not only had the opportunity to, but did present punishment evidence”).
    Due process objections generally must be made in the trial court to preserve
    for appeal. Alexander v. State, 
    137 S.W.3d 127
    , 130–31 (Tex. App.—Houston [1st
    Dist.] 2004, pet. ref’d) (holding failure to object to trial court of violations of
    federal and state due process rights waives appellate review of those claims).
    When a record reflects that the trial court sentenced a defendant immediately
    following an adjudication of guilt without affording the defendant the opportunity
    to present evidence, the defendant’s failure to contemporaneously object may be
    excused. 
    Issa, 826 S.W.2d at 161
    . In such “rare circumstances,” because the
    defendant does not have the “opportunity to object to the trial court’s action until
    after that action [is] taken,” raising the objection in a “timely filed motion for new
    trial [will] preserve the error for appellate review.” 
    Pearson, 994 S.W.2d at 177
    ;
    see also 
    Issa, 826 S.W.2d at 161
    .
    B. Analysis
    During the portion of the hearing dealing with the Registration Case, the
    court told appellant that he would “find him guilty, . . . [and] follow the plea
    bargain.” The court admonished, “When I do that, you give up your right to appeal
    without my permission on that case.           Do you understand that?”     Appellant
    responded, “Yes.” At that point, the court asked appellant, “So, what do you have
    9
    to say?” In response, appellant explained why he moved without providing the
    required notice about his new address. Appellant’s lawyer asked a follow-up
    question about his health, to which appellant responded that his health was “really
    bad,” with “a bad heart,” “real bad” blood pressure, and “bad leg, bad back.” The
    court asked “Anything else?” Appellant responded: “That’s about it, sir.” The
    court then sentenced appellant and the hearing concluded without objection to the
    lack of a punishment hearing.
    The State relies primarily on Pearson to argue that appellant in this case was
    not deprived of an opportunity to put on evidence relevant to punishment. In
    Pearson, after the State presented evidence in support of adjudication, the
    defendant “was sworn and testified in response to questions from his attorney as to
    “anything you would like to address the Court on [sic] regarding the 
    sentencing.” 994 S.W.2d at 178
    . The trial court in Pearson also specifically inquired about
    whether the defendant had additional arguments or evidence related to sentencing.
    The State argues that this case is analogous to Pearson, and urges us to
    conclude that appellant’s statements about why he moved and his bad health was
    all that appellant had to offer here in mitigation of punishment. We disagree. In
    Pearson, although the trial court did not hold a separate sentencing hearing after its
    adjudication of guilt, the record reflected that—unlike here—the court instructed
    the defendant during the hearing as to when it was considering the sentence—as
    10
    opposed to adjudication—and invited the defendant to offer anything he had
    specific to 
    sentencing. 994 S.W.2d at 179
    . Also unlike this case, the defendant’s
    lawyer in Pearson questioned the defendant specifically about what he would like
    to address with “regard to sentencing.” 
    Id. Such demarcation
    is simply not present
    on this record.
    Appellant asks us to hold that he was not required to preserve his complaint
    about the lack of a punishment hearing in the trial court because (1) as in Issa, he
    did not have an opportunity to object at the trial, and (2) unlike in Issa, he did not
    have an opportunity to file a motion for new trial because he was not represented
    by counsel between the date judgment was entered and the date he filed his pro se
    notice of appeal (a document in which he asserted that he had not been represented
    by counsel since sentencing).
    The record here supports appellant’s assertion that the trial court adjudicated
    him guilty, imposed his sentence, and then the proceedings were immediately
    adjourned. Thus, under Issa, his failure to object at the hearing did not waive his
    complaint that he was not afforded a punishment 
    hearing. 826 S.W.2d at 161
    .
    Although a motion for new trial is generally not required in order to present
    a point of error on appeal, see Tex. R. App. P. 21.2, a hearing on the motion serves
    to develop evidence that is not otherwise in the record. Benson v. State, 
    224 S.W.3d 485
    , 490 (Tex. App.—Houston [1st Dist.] 2007, no pet.) (en banc) (citing
    11
    
    Oldham, 977 S.W.2d at 361
    ). “Motions for new trial have been used primarily for
    claims of newly discovered evidence or jury misconduct, and are helpful for
    developing evidence of a trial attorney’s ineffective assistance of counsel,
    particularly when the issues concern a claim that is premised on a trial attorney’s
    failure to act.” 
    Id. Here, filing
    a motion for new trial could have served both the
    purpose of preserving for appeal the complaint that no punishment hearing was
    held and provided a means to develop a record of any evidence he may have been
    prevented from presenting.
    In support of his argument that he did not file a motion for new trial because
    he was without counsel during the post-judgment phase, appellant points to his pro
    se Notice of Appeal, which stated that he had “not be[en] represented by counsel
    since sentencing.” Appellant’s trial counsel did not formally withdraw as counsel,
    and there is a long-standing presumption in Texas law that “trial counsel continued
    to effectively represent appellant during the window of time for filing a motion for
    new trial.” 
    Id. (citing Ward
    v. State, 
    740 S.W.2d 794
    , 798 (Tex. Crim. App.
    1987)); see also TEX. CODE CRIM PRO. art. 26.04(j)(2) (“An attorney appointed
    under this article shall: . . . represent the defendant until charges are dismissed, the
    defendant is acquitted, appeals are exhausted, or the attorney is permitted or
    ordered by the court to withdraw as counsel for the defendant after a finding of
    good cause is entered on the record . . . .”). Moreover, absent a record showing
    12
    otherwise, we must apply the presumption that “the reason that a motion for new
    trial was not filed was because the appellant considered filing but opted not to file
    it.” 
    Benson, 224 S.W.3d at 490
    (citing Oldham v. 
    State, 977 S.W.2d at 363
    )).
    Appellant asks in the alternative that we abate the appeal to permit the filing
    of an out-of-time motion for new trial. There was a time that this Court routinely
    abated for an evidentiary hearing when faced with this situation to allow appellant
    to develop facts relevant to rebutting this presumption of effective representation
    during this critical stage.   E.g., 
    Benson, 224 S.W.3d at 492
    –494 (describing
    abatement procedures). In Benson, however, a majority of this Court sitting en
    banc noted the Court of Criminal Appeal’s disapproval of such abatements, and we
    thus “abandon[ed] the procedure.” 
    Id. at 495
    (citing Jack v. State, 
    149 S.W.3d 119
    , 124 (Tex. Crim. App. 2004)). Then we addressed facts essentially identical to
    those here, and concluded that the defendant had not effectively rebutted the
    presumption that he was effectively represented during the post-judgment period.
    
    Benson, 224 S.W.3d at 497
    . As here, in Benson (1) the defendant’s trial counsel
    did not withdraw from the case or conduct any post-sentencing activity, (2) the
    trial court appointed appellant counsel after the expiration of the deadline for a
    motion for new trial, and (3) the defendant filed a pro se notice of appeal averring
    that he had not been represented by counsel since sentencing. 
    Id. at 496–97.
    Given our disposition in Benson, we likewise conclude here that, on this record,
    13
    appellant has not rebutted the presumption that he was effectively represented by
    counsel during the motion-for-new-trial stage.1 Because we presume that he was
    represented by counsel, he was required to preserve his complaint about the lack of
    a punishment hearing in a motion for new trial and, by failing to, he waived that
    complaint for direct appeal.
    We overrule appellant’s second point of error.
    CONSIDERATION OF FULL RANGE OF PUNISHMENT
    In his first issue, appellant argues that the “record demonstrates that the trial
    court arbitrarily failed to consider the full range of punishment when sentencing”
    him to the maximum punishment available for the underlying crime being
    adjudicated, in violation of the Fifth and Fourteenth Amendments to the United
    States Constitution and in violation of Article 1, section 10 of the Texas
    Constitution. According to appellant, “nothing in the record demonstrates that the
    trial judge considered any punishment other than the maximum available, even
    though [appellant] spared the court, by his stipulations, a hearing and originally
    1
    As we did in Benson, we note here that “a defendant may develop a record of
    ineffective assistance of trial counsel or lack of counsel during the post-judgment
    phase through habeas corpus 
    proceedings.” 224 S.W.3d at 495
    n.5. “[W]hen
    direct appeal has not provided an adequate record to evaluate a claim which might
    be substantiated through additional evidence gathered in a habeas corpus
    proceeding, we will not apply the general doctrine that forbids raising a claim on
    habeas corpus after it was rejected on appeal.” Jackson v. State, 
    973 S.W.2d 954
    ,
    957 (Tex. Crim. App. 1998); Ex parte Torres, 
    943 S.W.2d 469
    , 475 (Tex. Crim.
    App. 1997) (en banc).
    14
    spared the court a trial by pleading guilty to the underlying offense.” Thus,
    appellant contends, “[w]hile there is a presumption that the trial court’s actions
    were correct, absent a clear showing to the contrary, Thompson v. State, 641
    S.W.2d [920], 921 [(Tex. Crim. App. 1982)], in this case the trial judge’s
    unrestrained expression of his personal contempt for Mr. Washington and his
    assertion that his ‘only regret’ was that he could not sentence him to life in prison,
    makes it abundantly clear that the judge never considered the full range of
    punishment before pronouncing the maximum sentence.” Appellant acknowledges
    that this objection was not made in the trial court, but contends that the complaint
    was not waived because he had no opportunity to object and because, in any event,
    it would have been clearly futile.
    The State urges us to find this complaint waived. As for the merits, the State
    responds that there is no indication in the record that the trial court did not consider
    the full range of punishment. Unlike other cases finding reversible error, this case
    does not involve a situation in which the trial court promised to impose a
    maximum sentence if the defendant violated terms of community supervision, and
    then imposed that sentence upon revocation. The State also points out that “the
    trial court statements of which appellant complains were said after appellant had
    the chance to present and did present mitigating evidence.” The State concedes
    that if “the trial court had made statements condemning appellant prior to hearing
    15
    all of the evidence, it would tend to show that the trial court may have already
    made up [its] mind on an appropriate sentence.” Here, however, the State claims
    that the “trial court comments on the heinous nature of appellant’s crime [came]
    only after he ha[d] heard all the evidence,” which merely indicates the trial court’s
    opinion on the evidence.
    A. Applicable Law
    Due process requires that a trial court be neutral and detached. Gagnon v.
    Scarpelli, 
    411 U.S. 778
    , 786, 
    93 S. Ct. 1756
    , 1762 (1973); Jaenicke v. State, 
    109 S.W.3d 793
    , 796 (Tex. App.—Houston [1st Dist.] 2003, pet. ref’d).
    It is a denial of due process for a trial court to arbitrarily refuse to consider
    the entire range of punishment for an offense or to refuse to consider mitigating
    evidence and impose a predetermined punishment. E.g., McClenan v. State, 
    661 S.W.2d 108
    , 110 (Tex. Crim. App. 1983); Burke v. State, 
    930 S.W.2d 230
    , 234
    (Tex. App.—Houston [14th Dist.] 1996, pet. ref’d); Howard v. State, 
    830 S.W.2d 785
    , 787 (Tex. App.—San Antonio 1992, pet. ref’d); Jefferson v. State, 
    803 S.W.2d 470
    , 471 (Tex. App.—Dallas 1991, pet. ref’d); Cole v. State, 
    757 S.W.2d 864
    , 865 (Tex. App.—Texarkana 1988, pet. ref’d). In the absence of a clear
    showing to the contrary, however, a reviewing court will presume that the trial
    court was neutral and detached. Steadman v. State, 
    31 S.W.3d 738
    , 741–42 (Tex.
    App.—Houston [1st Dist.] 2000, pet. ref’d).
    16
    Due process violations have been found when a trial court assesses
    punishment at a revocation hearing that is consistent with the punishment it has
    previously announced it would assess upon revocation if there is no indication that
    the court considered relevant evidence. E.g., 
    Jefferson, 803 S.W.2d at 472
    (noting
    that, by following through on promise of a certain punishment if defendant violates
    conditions of community service, the trial court (1) effectively excludes evidence
    relevant to punishment, (2) precludes the court from considering the full
    punishment range prescribed by law, and (3) deprives the defendant of a fair and
    impartial tribunal). In contrast, if the record reflects that the trial court heard
    evidence before imposing its sentence and that the full range was considered,
    comments from the court indicating the judge’s negative view of the defendant or
    the crime does not amount to a due process violation. Brumit v. State, 
    206 S.W.3d 639
    , 645 (Tex. Crim. App. 2006).
    The Court of Criminal Appeals has addressed the merits of this type of claim
    while expressly declining to decide whether an objection to an alleged failure to
    consider the entire punishment range is required to preserve the error on appeal.
    
    Id. at 644–45.
    We have followed Brumit’s lead by addressing the merits of these
    claims on appeal while noting that the question of whether this issue “implicates
    the type of systemic error” that can be addressed for the first time on appeal is an
    open question. E.g., Avilez v. State, 
    333 S.W.3d 661
    , 672 n.19 (Tex. App.—
    17
    Houston [1st Dist.] 2010, pet. ref’d); McLean v. State, 
    312 S.W.3d 912
    , 917 (Tex.
    App.—Houston [1st Dist.] 2010, no pet.).
    B. Analysis
    Appellant contends that the trial court’s comments at sentencing made it
    clear that it never considered the full range of punishment and that the court based
    its decision on its loathing of appellant and sex offenders generally, rather than on
    evidence relevant to adjudication and sentencing in this case.         As we have
    previously done, we “[a]ssum[e] without deciding that [appellant’s] complaint, if
    valid, implicates the type of systemic error that we may address for the first time
    on appeal, [and thus]       consider whether the trial court’s actions violated
    [appellant’s] due process right to an impartial judge.” 
    Avilez, 333 S.W.3d at 672
    .
    Unlike in several of cases finding that the trial court improperly failed to
    consider the full range of punishment, we do not have a record here of the earlier
    hearing at which the court accepted the parties’ agreement to defer adjudication.
    Accordingly, there is no record—or even allegation—that the trial court in this
    case made such a promise relating to any future adjudication and sentencing. This
    case is thus distinguishable from the cases appellant relies upon in which there is a
    record that the trial court promised a particular sentence if the defendant violated
    terms of community supervision, and then imposed that sentence with no
    18
    indication that the full punishment range had been considered. See e.g., 
    Howard, 830 S.W.2d at 788
    ; 
    Jefferson, 803 S.W.2d at 472
    .
    But this case is also distinguishable from the cases relied upon by the State
    in which the record shows that, at a minimum, there was a full punishment hearing
    and consideration of lesser punishment. For example, the State cites Brumit, a case
    in which the defendant complained that certain comments by the court indicated
    that the judge was partial and imposed a predetermined sentence. The Court of
    Criminal Appeals disagreed, noting both that the trial court in Brumit had heard
    extensive evidence related to punishment and that the record affirmatively
    indicated that that the court considered the full range of punishment. 
    Brumit, 206 S.W.2d at 645
    .
    As previously explained, given the record here, we cannot agree with the
    State that the record clearly indicates that the trial court’s comments “were said
    after appellant had the chance to present and did present mitigating evidence.”
    The ultimate factual resolution of that issue is, however, dependent upon the
    factual resolution of appellant’s complaint that he was not afforded a sentencing
    hearing. Because we overruled that complaint based on appellant’s failure to
    demonstrate his inability to preserve an adequate record on direct appeal, we
    likewise hold that appellant has not met his burden, on this record, of
    19
    demonstrating that the trial court failed to consider the full range of punishment.
    We thus overrule appellant’s first point of error.
    DISCREPANCY BETWEEN ORAL PRONOUNCEMENT AND
    WRITTEN JUDGMENT
    The record reveals that the trial court sentenced appellant to “20 years
    confinement, credit for his back time.” The judgment, however, reflects a sentence
    of “20 years institutional division, TDCJ” and a $10,000 fine. In his third issue,
    appellant complains that it was error for the trial court to enter a judgment
    including a $10,000 fine because that fine was not part of the trial court’s oral
    pronouncement of his sentence.       See Coffey v. State, 
    979 S.W.2d 326
    , 328 (Tex.
    Crim App. 1998) (“[W]hen there is a variation between the oral pronouncement of
    sentence and the written memorialization of the sentence, the oral pronouncement
    controls.”). The State concedes this was error and that we should reform the
    judgment to conform to the oral pronouncement of sentence. We accordingly
    sustain appellant’s third point of error.
    CONCLUSION
    We reform the judgment to delete the imposition of a $10,000 fine. We
    otherwise affirm the trial court’s judgment. Given the procedural posture, our
    conclusion should not be understood as approval of the trial court’s comments or
    the sentencing procedures followed in this case.
    20
    Sherry Radack
    Chief Justice
    Panel consists of Chief Justice Radack and Justices Sharp and Massengale.
    Justice Sharp, concurring in judgment only.
    Do not publish. TEX. R. APP. P. 47.2(b).
    21