Opinion
No. 05-04-00960-CR
Opinion Issued July 22, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the Criminal District Court No. 4, Dallas County, Texas, Trial Court Cause No. F98-54487-IK. Affirmed as modified.
Before Justices WRIGHT, BRIDGES, and FITZGERALD.
OPINION
Jason Lamar Roberts waived a jury trial and entered a non-negotiated guilty plea to aggravated robbery with a deadly weapon. See Tex. Pen. Code Ann. § 29.03 (Vernon 2003). The trial court deferred adjudicating guilt, placed appellant on six years' community supervision, and assessed a $500 fine. Later, the State moved to adjudicate guilt, alleging nine probation violations. Appellant pleaded true to the allegations. The trial court found the allegations true, adjudicated appellant guilty, and assessed punishment at fifteen years' confinement and a fine of $471.25. The trial court also made an affirmative finding that appellant used or exhibited a deadly weapon, a firearm, during commission of the offense. In two points of error, appellant contends the written judgment adjudicating guilt is inaccurate because: (1) it includes a fine and court costs that were not orally pronounced, and (2) the oral pronouncement did not mention a deadly weapon finding. We affirm as modified. In his second point of error, appellant argues the trial court's judgment improperly includes a deadly weapon finding that was not orally pronounced at sentencing after adjudication of guilt. Appellant asks this court to modify the judgment to delete the deadly weapon finding. The State responds that the written judgment properly includes a deadly weapon finding. We agree with the State. A deadly weapon finding is not part of a sentence. See State v. Ross, 953 S.W.2d 748, 752 (Tex.Crim.App. 1997). Thus, while the better practice is to pronounce the deadly weapon finding, such a pronouncement is not required to include the finding in the judgment. See id. We overrule appellant's second point of error. In his first point of error, appellant argues the trial court's judgment adjudicating guilt should be modified to delete the fine and court costs that were not orally pronounced at sentencing. The State concedes the trial court's judgment should be modified to delete the fine, and affirmed as modified. To the extent appellant complains about the court costs, his complaint is without merit. Court costs are not a part of the sentence and do not have to be pronounced. See Tex. Code Crim. Proc. Ann. art. 42.02 (Vernon Supp. 2004-05). We sustain appellant's point of error as to the fine. The trial judge did not orally pronounce the fine when he sentenced appellant following adjudication of guilt. Therefore, it was not properly included in the judgment. See Taylor v. State, 131 S.W.3d 497, 502 (Tex.Crim.App. 2004). 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). We modify the trial court's judgment adjudicating guilt to delete the $471.25 fine. As modified, we affirm the trial court's judgment.