Opinion
No. 05-08-00921-CR
Opinion Filed March 30, 2009. DO NOT PUBLISH. Tex. R. App. P. 47
On Appeal from the 382nd Judicial District Court, Rockwall County, Texas, Trial Court Cause No. 2-05-167.
Before Justices BRIDGES, O'NEILL, and FITZGERALD.
OPINION
Penni Rhnea Simms waived a jury and pleaded guilty to theft of property valued at more than $200,000. Pursuant to a plea agreement, the trial court deferred adjudicating guilt, placed appellant on ten years' community supervision, and assessed a $500 fine. The State later moved to adjudicate guilt, alleging appellant violated the terms of her community supervision. The trial court found the allegations true, adjudicated appellant guilty, and assessed punishment at eight years' imprisonment. In a single issue, appellant contends the trial court's written judgment should be modified to delete the fine, court costs, and attorney fees. We modify the trial court's judgment and affirm as modified. Appellant contends that because the trial court did not orally pronounce a fine, court costs, and attorney fees, the written judgment should be modified to delete them. The State agrees that the fine was not orally pronounced at sentencing and should be deleted, but argues the court costs and attorney fees are properly included in the judgment because the trial court is not required to orally pronounce court costs and attorney fees. When the trial court placed appellant on deferred community supervision, it assessed a $500 fine, attorney's fees, court fees, and $349,420.58 in restitution. After the trial court adjudicated appellant's guilt, it orally imposed an eight-year prison term with no mention of a fine, court costs, or attorney fees. However, the trial court's written judgment recites "$678 attorney fees, $65.08 court costs, arrearages: $312.50 attorney fee; $500 fine." A "sentence" is the part of the judgment ordering the punishment to be executed as prescribed by law. See Tex. Code Crim. Proc. Ann. art. 42.02 (Vernon 2006). Theft of property valued at more than $200,000 is punishable by imprisonment for life or any term from five to ninety-years, and an optional fine not to exceed $10,000. See Tex. Penal Code Ann. §§ 12.32, 31.03(a), (e)(7) (Vernon 2003 Supp. 2008). Court costs and attorney fees are not a part of the sentence and need not be included in the oral pronouncement of the sentence. See Weir v. State, No. PD-0616-08, 2009 WL 605362, at *2 (Tex.Crim.App. March 11, 2009). However, a fine is a part of the sentence and must be included in the oral pronouncement of the sentence. See Tex. Code Crim. Proc. Ann. art. 42.03, § 1(a) (Vernon Supp. 2008). Where a conflict exists between the oral pronouncement and written memorialization of the sentence, the oral pronouncement controls. See Coffey v. State, 979 S.W.2d 326, 328 (Tex.Crim.App. 1998). Here, the trial court did not orally pronounce the $500 fine when it adjudicated appellant guilty and imposed the sentence. Thus, the written judgment improperly includes the fine. We sustain appellant's complaint as to the fine. We modify the trial court's judgment to delete the $500 fine. 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). As modified, we affirm the trial court's judgment.