Opinion
No. 05-02-01251-CR.
Opinion Filed January 28, 2003. DO NOT PUBLISH, Tex.R.App.P. 47.
Appeal from the Criminal District Court No. 2, Dallas County, Texas, Trial Court Cause No. F01-73300-PI. AFFIRMED AS MODIFIED.
Before Chief Justice THOMAS and Justices MOSELEY and LANG.
OPINION
Jose Luis Botello appeals his conviction for aggravated assault with a deadly weapon. See Tex. Pen. Code Ann. § 22.02 (Vernon 1994). Appellant waived a jury trial and entered a negotiated guilty plea. Pursuant to the plea bargain agreement, the trial court deferred adjudicating guilt, placed appellant on five years probation, and assessed a $1000 fine. The trial court also made an affirmative finding that appellant used or exhibited a deadly weapon, a knife, during the commission of the offense. Subsequently, the trial court granted the State's motion to proceed with adjudication, adjudicated appellant guilty, and sentenced him to three years' confinement. In two points of error, appellant contends the trial court's judgment should be modified to delete a fine that was not orally pronounced at adjudication, and article 42.12, section 5(b) of the Texas Code of Criminal Procedure, which prohibits appellant from appealing the trial court's determination to proceed with adjudication of guilt, violates the Texas Constitution. We sustain appellant's first point of error and overrule his second point of error. In his second point of error, appellant contends that because article 42.12, section 5(b) of the Texas Code of Criminal Procedure prevents him from appealing the trial court's determination to proceed with adjudication, it violates equal protection under the Texas Constitution. Appellant argues defendants placed on deferred adjudication probation should be allowed to appeal the determination to adjudicate just as defendants placed on regular probation have a right to appeal a revocation of their probated sentences. Appellant acknowledges our holding in Rocha v. State, 903 S.W.2d 789 (Tex.App.-Dallas 1995, no pet.), but asks us to revisit that holding in light of his equal protection complaint. The State argues appellant did not object in the trial court about the constitutionality of the statute and, thus, has waived any error. The State also argues that because this Court has previously held the statute is not unconstitutional, appellant's complaint is without merit. We agree with the State. Appellant did not object to the constitutionality of article 42.12, section 5(b) as applied to him either at trial or in a motion for new trial. By failing to object in the trial court, appellant has not preserved his complaint. Tex. R. App. P. 33.1(a). Moreover, this Court has previously held that denying a deferred adjudication probationer the right to appeal the trial court's determination to proceed with adjudication is rationally related to a legitimate State interest and is not unconstitutional. See Rocha v. State, 903 S.W.2d 789, 791 (Tex.App.-Dallas 1995, no pet.). We overrule appellant's second point of error. In his first point of error, appellant asserts the trial court's judgment incorrectly contains a fine that was not orally pronounced at adjudication. Appellant asks this Court to modify the judgment to delete the fine. The State agrees the judgment should be modified to delete the fine. Appellant is entitled to have his sentence, including the assessment of any fines, pronounced in his presence. See Tex. Code Crim. Proc. Ann. art. 42.03, § 1(a) (Vernon Supp. 2003); Abron v. State, 997 S.W.2d 281, 282 (Tex.App.-Dallas 1998, pet. ref'd). When there is a variation between the oral pronouncement of the sentence and the written memorialization of the sentence, the oral pronouncement controls. See Coffey v. State, 979 S.W.2d 326, 329 (Tex.Crim.App. 1998). Thus, the judgment incorrectly includes a $1000 fine that was not orally pronounced as part of the sentence after the judge adjudicated guilt. We sustain appellant's first point of error. We have the power to modify incorrect judgments when we have the necessary information to do so. See Tex. R. App. P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27-28 (Tex.Crim. App. 1993); Asberry v. State, 813 S.W.2d 526, 529-30 (Tex.App.-Dallas 1991, pet. ref'd). Accordingly, we modify the trial court's judgment to delete the fine. As modified, we affirm the trial court's judgment.