Coffey v. State

979 S.W.2d 326, 1998 Tex. Crim. App. LEXIS 126, 1998 WL 692482
CourtCourt of Criminal Appeals of Texas
DecidedOctober 7, 1998
Docket1387-97
StatusPublished
Cited by402 cases

This text of 979 S.W.2d 326 (Coffey v. State) is published on Counsel Stack Legal Research, covering Court of Criminal Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Coffey v. State, 979 S.W.2d 326, 1998 Tex. Crim. App. LEXIS 126, 1998 WL 692482 (Tex. 1998).

Opinions

OPINION ON THE STATE’S PETITION FOR DISCRETIONARY REVIEW

OVERSTREET, Judge,

delivered the opinion of the Court

in which BAIRD, MEYERS, MANSFIELD, and PRICE, Judges, joined.

Appellant was charged by information with possession of cocaine, alleged to have occurred on or about March 2, 1993. Later in March of 1993, appellant plead guilty to the offense of possession of less than 28 grams of cocaine, and the judgment reflects that he was sentenced, pursuant to a negotiated plea agreement, to five years confinement in the penitentiary and a fine of $750, probated for five years. In January of 1996, after a hearing on the State’s motion to revoke and appellant’s open plea of true to the allegations, the trial court revoked appellant’s probation and orally assessed “punishment at five years confinement in the penitentiary.” However, the written “Judgment Revoking Community Supervision” indicated that the sentence included a fine of $750. On appeal, the court of appeals affirmed the judgment, but reformed the sentence to delete the $750 fine. Coffey v. State, No. 05-96-00181-CR (TexApp. — Dallas, delivered July 8, 1997). We granted the State’s petition for discretionary review which disputes the court of appeals’ action in deleting the fine.

I. COURT OF APPEALS HOLDING

The court of appeals concluded that the $750 fine included in the written judgment was erroneous because neither the trial court’s oral pronouncement of sentence at the end of the revocation hearing nor the docket sheet reflected such a fine. Id., slip op. at 2. The court therefore reformed the judgment by deleting the fine.

II. STATE’S CLAIM

The State’s ground asserts that the court of appeals erred in reforming the judgment to delete the fine “because the initial judgment upon appellant’s plea showed his confinement was probated but his fine was not.” (emphasis in original) The State insists that the fine was never probated. It points out [328]*328that one of the conditions of the probation ordered appellant to pay $10 per month until the fine was paid, i.e. “until paid in full.”

The State also notes that the judgment upon the revocation of probation, which shows five-years penitentiary time was assessed, also imposed the $750 fine, which was merely continuing the $750 fine which was assessed in the first judgment when the confinement portion of the sentence was suspended but the fine was not. The State insists that since the initial judgment and the judgment upon revocation conformed, i.e. appellant was sentenced to five years incarceration and a $750 fine in both, there was no omission or error in the final judgment and reformation was improper. It suggests that upon revocation of the probated penitentiary incarceration portion of'the sentence, since the fine remained the same, the trial court’s oral pronouncement only went to what was changed.

III. ANALYSIS

The State seems to be asserting that since only the incarceration portion of the original sentence was probated, then only that portion of the sentence was subject to the revocation hearing; and that since the incarceration portion was the sole subject of the revocation hearing, then that was the only portion of the sentence that the trial judge was addressing when he orally pronounced the sentence after the revocation. Nevertheless, we must determine whether the trial court’s oral pronouncement of a sentence controls over the written judgment.

We have held that the written findings of the court control over an oral announcement. Eubanks v. State, 599 S.W.2d 815, 817 (Tex.Cr.App.1980); Aguilar v. State, 542 S.W.2d 871, 874 (Tex.Cr.App.1976); Ablon v. State, 537 S.W.2d 267, 269 (Tex.Cr.App.1976). These cases all involved written probation revocation orders based upon grounds which were inconsistent with the oral pronouncement of revocation. The basis for revocation stated in the written order controlled.

However, in Mazloum v. State, 772 S.W.2d 131 (Tex.Cr.App.1989), this Court allowed a written order revoking probation that recited an invalid ground for revocation to be reformed to reflect a valid ground where the trial court orally made the specific valid finding. Thus in that situation, the written order, which did not mention the valid basis for revocation, did not control.

In the instant cause, the dispute is not over the findings on the allegations of probation violation or the basis of the revocation. The dispute is over the sentence assessed, i.e. whether $750 is or is not included in the sentence. But we must still determine whether the trial court’s oral pronouncement of a sentence controls over the written judgment or vice versa.

Article 42.02, V.A.C.C.P., provides that the sentence is the part of the judgment, or order revoking a suspension of the imposition of sentence, “that orders that the punishment be carried into execution in the manner prescribed by law.” Article 42.03, § 1(a), V.A.C.C.P., provides that the sentence shall be pronounced in the defendant’s presence, except as provided in Article 42.14, V.A.C.C.P., which allows such to be done in the absence of the defendant in a misdemeanor case.

In Rodarte v. State, 860 S.W.2d 108, 109-10 (Tex.Cr.App.1993), we unanimously held that in appealing a judgment of conviction, the time for filing a notice of appeal begins to run “on the day sentence is imposed or suspended in open court” rather than when the written judgment/sentenee is signed. We specifically noted that the written judgment is merely a record of events which have occurred in fact and is not itself the conviction, and it is not the signing of the judgment that constitutes the appealable event. Id. at 109, n. 1. Thus it is the pronouncement of sentence that is the appealable event, and the written sentence or order simply memorializes it and should comport therewith.

We therefore hold that when there is a variation between the oral pronouncement of sentence and the written memorialization of the sentence, the oral pronouncement controls. Since the time for appeal begins when the sentence is imposed or suspended in open court, then the imposed or suspended sentence is obviously the appealable event which can be challenged. Any subsequent devia[329]*329tion from that sentence, i.e. either a decrease or increase, could not supersede what had already been imposed in open court.2

IV. CONCLUSION

Having concluded that the oral pronouncement of sentence controls, we come to the State’s claim that the $750 fine was actually imposed during the original plea proceeding which resulted in probation being granted. We agree.

The record does not contain a statement of facts (reporter’s record) from the original plea proceeding. However, the transcript (clerk’s record) does reflect that a fine of $750 was imposed pursuant to the plea agreement.

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Bluebook (online)
979 S.W.2d 326, 1998 Tex. Crim. App. LEXIS 126, 1998 WL 692482, Counsel Stack Legal Research, https://law.counselstack.com/opinion/coffey-v-state-texcrimapp-1998.