Cedriz Alphonso Berkley, Jr. v. State

Opinion

NO. 07-11-0264-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL A

JULY 13, 2012 ______________________________

CEDRIZ ALPHONSO BERKLEY, JR., APPELLANT

V.

THE STATE OF TEXAS, APPELLEE

_________________________________

FROM THE 27TH DISTRICT COURT OF BELL COUNTY;

NO. 66,650; HONORABLE JOE CARROLL, JUDGE

_______________________________

Before CAMPBELL and HANCOCK and PIRTLE, JJ.

MEMORANDUM OPINION

Appellant, Cedriz Alphonso Berkley, Jr., pled guilty in open court to aggravated

assault with a deadly weapon.1 He was sentenced to fifteen years confinement. In a

single issue, Appellant asserts the trial court erred by including in its written judgment a

requirement that he pay $26,383.94 in restitution when the trial court’s oral sentencing

pronouncement did not refer to the payment of any restitution. The State, with

1 See Tex. Penal Code Ann. § 22.02(a)(2) (West 2011). commendable candor, concedes the trial court erred and asks this Court to modify the

judgment by deleting the order for payment of restitution.

The record reflects that, at a punishment and sentencing hearing held on May

12, 2011, the trial court pronounced that Appellant was sentenced to fifteen years

confinement without any mention of restitution. The statute authorizing restitution, Tex.

Code Crim. Proc. Ann. art. 42.037(a) (West Supp. 2011) provides that a trial court may

order a convicted defendant to make restitution to a victim of the offense "[i]n addition to

any fine imposed by law." An order to pay restitution is part of the convicted

defendant's punishment. Weir v. State, 278 S.W.3d 364, 366 (Tex.Crim.App. 2009); Ex

parte Cavazos, 203 S.W.3d 333, 338 (Tex.Crim.App. 2006) (original proceeding); Cabla

v. State, 6 S.W.3d 543, 545 (Tex.Crim.App. 1999). A defendant’s sentence must be

pronounced in the defendant’s presence. Tex. Code Crim. Proc. Ann. art. 42.03(a)

(West Supp. 2011). When the oral pronouncement of sentence and the written

judgment differ, the oral pronouncement controls. Ex parte Huskins, 176 S.W.3d 818,

820 (Tex.Crim.App. 2005). Therefore, an order of restitution must be included in the

oral pronouncement of sentence to be included in the written judgment. Lane v. State,

No. 12-11-00071-CR, 2012 Tex.App. LEXIS 3389, at *5-6 (Tex.App.--Tyler April 30,

2012, no pet.) (not designated for publication); Sauceda v. State, 309 S.W.3d 767, 769

(Tex.App.—Amarillo 2010, pet. ref’d); Alexander v. State, 301 S.W.3d 361, 364

(Tex.App.--Fort Worth 2009, no pet.). Because the trial court did not include restitution

in its oral pronouncement of sentence, it could not assess restitution in its written

judgment. Accordingly, we find the trial court erred and “the proper remedy is to

2 modify the judgment to delete the order of restitution.” Sauceda, 309 S.W.3d at 769.

Appellant’s single issue is sustained.

Conclusion

The trial court’s judgment is modified to delete the portion requiring restitution

and, in all other respects, the judgment is affirmed.

Patrick A. Pirtle Justice

Do not publish.