Opinion
NO. 09-12-00063-CR
09-12-2012
STEVEN VELICE SEASTRUNK, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 252nd District Court
Jefferson County, Texas
Trial Cause No. 11-11746
MEMORANDUM OPINION
Pursuant to a plea bargain agreement, appellant Steven Velice Seastrunk pleaded guilty as a prior felony offender to burglary of a building. The trial court found the evidence sufficient to find Seastrunk guilty, but deferred further proceedings, placed Seastrunk on community supervision for seven years, and assessed a fine of $1000. The State subsequently filed a motion to revoke Seastrunk's unadjudicated community supervision. Seastrunk pleaded "true" to one violation of the conditions of his community supervision. The trial court found that Seastrunk violated the conditions of his community supervision, found Seastrunk guilty of burglary of a building, and assessed punishment at seven years of confinement.
The trial court's judgment does not reflect an assessment of a fine on its face; however, the appellate record includes a "revocation restitution/reparation balance sheet[.]" Said balance sheet indicates that the administrative fees of $1790 reflected on the judgment included a $1000 fine. Seastrunk raises three appellate issues related to the imposition in the written judgment of a fine that was not orally pronounced at sentencing. The State confesses error.
When pronouncing sentence, the trial court stated as follows
In Cause No. 11746, I find the evidence to be sufficient to find Count 1 to be true. It is true. I hereby revoke your unadjudicated probation. I now find you guilty of the offense of burglary of a building. You are guilty. I assess your punishment at seven years' confinement in the Institutional Division. You will receive credit for any and all time that you're entitled to by law.The trial court did not include a fine in its oral pronouncement.
And so the record's clear, this is not a State Jail felony. He had previously pled guilty to burglary of a building; he also pled true to the two prior second degree felonies, which enhanced the punishment range.
"[S]entence shall be pronounced in the defendant's presence." Tex. Code Crim. Proc. Ann. art. 42.03, § 1(a) (West Supp. 2012). The judgment, including the sentence assessed, is merely the written declaration and embodiment of the trial court's oral pronouncement. Taylor v. State, 131 S.W.3d 497, 500 (Tex. Crim. App. 2004). When the oral pronouncement of sentence and the written judgment differ, the oral pronouncement controls. Id. When the trial court revokes an order for deferred adjudication community supervision, it cannot include the fine that it imposed in the original plea proceeding unless it orally pronounces the fine at the adjudication hearing. Id. at 502.
Because the amendments to article 42.03 are not material to this case, we cite to the current version.
As previously stated, the trial court did not include a fine in its oral pronouncement. We sustain Seastrunk's issues. Therefore, we modify the judgment to remove the $1000 fine reflected on the balance sheet by deleting "$1790.00" from the section of the judgment entitled "Administrative Fees" and substituting "$790.00" in its place. As modified, we affirm the trial court's judgment.
AFFIRMED AS MODIFIED.
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STEVE McKEITHEN
Chief Justice
Do Not Publish Before McKeithen, C.J., Gaultney and Horton, JJ.