Chris L. Vasquez v. State

• Court: Court of Appeals of Texas
• Decided: February 20, 2015
• Docket: 07-13-00400-CR
• Status: Published

Opinion

In The Court of Appeals Seventh District of Texas at Amarillo

No. 07-13-00400-CR

CHRIS L. VASQUEZ, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE

On Appeal from the 140th District Court Lubbock County, Texas Trial Court No. 2008-420,480, Honorable Jim Bob Darnell, Presiding

February 20, 2015

MEMORANDUM OPINION Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.

Through three issues, appellant Chris L. Vasquez challenges the portion of his

sentence requiring payment of restitution.1 We will modify the trial court’s judgment to

delete the order of restitution and as modified, affirm.

1 Appellant’s original direct appeal of his conviction was filed in 2010. The motion to withdraw filed by his appellate counsel, supported by an Anders brief, was granted and the judgment of the trial court affirmed. Vasquez v. State, No. 07-10- 00325-CR, 2011 Tex. App. LEXIS 5179 (Tex. App.—Amarillo 2011, pet. refused) (mem. op., not designated for publication). Appellant sought a writ of habeas corpus for an out of time appeal. He complained of the trial court’s inclusion in the judgment of a Background

Because appellant limits his challenge to a part of the sentence, we recite only

those facts necessary for our disposition. Appellant entered an open plea of guilty to

the charge of burglary of a habitation. He also plead true to one enhancement

paragraph alleging a prior final conviction for burglary of a habitation. Punishment was

tried to the bench. In open court, in appellant’s presence, the trial court pronounced

appellant’s sentence of 45 years in the Texas Department of Corrections. The sentence

pronounced did not include an order of restitution. Nonetheless, in its written judgment,

the court ordered appellant to pay restitution of $4,546.16 to an unspecified

“agency/agent.”

Analysis

A trial court orally pronounces sentence in the defendant’s presence while its

judgment is the written declaration and embodiment of the oral pronouncement.

Alexander v. State, 301 S.W.3d 361, 363 (Tex. App.—Fort Worth 2009, no pet.); TEX.

CODE CRIM. PROC. ANN. art. 42.01, § 1; art. 42.03, § 1 (West Supp. 2014). If the oral

pronouncement of sentence and the written judgment conflict, the oral pronouncement

controls. Taylor v. State, 131 S.W.3d 497, 500 (Tex. Crim. App. 2004); Sauceda v.

State, 309 S.W.3d 767, 769 (Tex. App.—Amarillo 2010, pet. refused). “The rationale for

this rule is that the imposition of sentence is the crucial moment when all of the parties

__________________ restitution order when none was pronounced with his sentence. The trial court found appellant received ineffective assistance of appellate counsel and the Court of Criminal Appeals reset the clock for appellant’s direct appeal. Ex parte Vasquez, No. WR- 79,596-01, 2013 Tex. Crim. App. Unpub. LEXIS 1147 (Tex. Crim. App. Oct. 30, 2013). The present appeal followed.

2 are physically present at the sentencing hearing and able to hear and respond to the

imposition of sentence. Once he leaves the courtroom, the defendant begins serving

the sentence imposed.” Ex parte Madding, 70 S.W.3d 131, 135 (Tex. Crim. App. 2002).

The appropriate remedy when an order of restitution is improperly included in the written

judgment is to modify the judgment by deleting the order of restitution. Sauceda, 309

S.W.3d at 769; Montgomery v. State, No. 07-10-00068-CR, 2010 Tex. App. LEXIS

7331, at *5 (Tex. App.—Amarillo Sept. 2, 2010, no pet.) (mem. op., not designated for

publication).

In the present matter, because the trial court did not include an order of

restitution in its oral pronouncement of sentence, it was not empowered to order

restitution through the judgment. The State agrees that the restitution order was

improperly included in the judgment and should be deleted. We therefore modify the

judgment by deleting the restitution order.

Conclusion

The trial court’s judgment is modified by deleting the order that appellant pay

restitution of $4,546.16. As modified, the judgment is affirmed.

James T. Campbell Justice

Do not publish.