James Andrea Phayar Aburu v. the State of Texas ( 2023 )

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-23-00089-CR
___________________________
JAMES ANDREA PHAYAR ABURU, Appellant
V.
THE STATE OF TEXAS
On Appeal from the 372nd District Court
Tarrant County, Texas
Trial Court No. 1606182D
Before Kerr, Bassel, and Walker, JJ.
Memorandum Opinion by Justice Walker
MEMORANDUM OPINION
A jury convicted Appellant James Andrea Phayar Aburu of two counts of
aggravated sexual assault of a child and one count of indecency with a child by
contact. The jury assessed his punishment at 60 years’ confinement on each of the
sexual-assault counts and 20 years’ confinement on the indecency count, but it did not
assess any fines. The trial court orally sentenced Aburu in accordance with the jury’s
assessment and ordered that the terms of confinement be served consecutively. No
fine was assessed in open court. However, the written judgment for count one
includes a $100 fine, which is also reflected in the order to withdraw funds from
Aburu’s inmate trust account.1 In two issues, Aburu argues that the $100 fine was
improperly assessed against him and that we should delete it from both the written
judgment on count one and the order to withdraw funds. The State agrees with
Aburu and so do we.
A defendant’s sentence, which includes any fine imposed, must be pronounced
orally in his presence. Taylor v. State, 131 S.W.3d 497, 500 (Tex. Crim. App. 2004);
Lewis v. State, 423 S.W.3d 451, 459 (Tex. App.—Fort Worth 2013, pet. ref’d). “When
there is a conflict between the oral pronouncement of sentence and the sentence in
the written judgment, the oral pronouncement controls.” Taylor, 131 S.W.3d at 500.
1
The written judgment for count one assessed a $100 fine, $290 in court costs,
and $55 in reimbursement fees, for a total of $445. The order to withdraw funds
directs that $445 be withdrawn from Aburu’s inmate account. The district clerk’s bill
of cost, however, reflects that only $345 had been assessed against Aburu.
2
Because a fine was not assessed by the jury or orally pronounced by the trial
court, we sustain both of Aburu’s issues. We modify both the judgment in count one
and the order to withdraw funds to delete the $100 fine, and we affirm the judgment
of the trial court as modified.
/s/ Brian Walker
Brian Walker
Justice
Do Not Publish
Tex. R. App. P. 47.2(b)
Delivered: December 14, 2023
3