Darrell Lynn Miller v. State

• Court: Court of Appeals of Texas
• Decided: March 28, 2013
• Docket: 13-12-00069-CR
• Status: Published

Opinion

NUMBER 13-12-00069-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

DARRELL LYNN MILLER, Appellant,

v.

THE STATE OF TEXAS, Appellee.

On appeal from the 252nd District Court of Jefferson County, Texas.

MEMORANDUM OPINION1 Before Justices Rodriguez, Benavides, and Perkes Memorandum Opinion by Justice Perkes

Appellant Darrell Lynn Miller appeals the trial court’s judgment revoking his

deferred-adjudication community supervision, arguing by three related issues that the

trial court’s inclusion of $750.00 in the “administrative costs” in the Judgment Adjudicating

Guilt was improper. Appellant specifically complains that the trial court: (1) violated 1 This case is before this Court on transfer from the Ninth Court of Appeals in Beaumont pursuant to an order issued by the Supreme Court of Texas. See TEX. GOV'T CODE ANN. § 73.001 (West 2005). article 42.03 of the Texas Code of Criminal Procedure by including a fine in the judgment

without first orally pronouncing it in the appellant’s presence; 2 (2) erred by including the

fine as an administrative fee in the judgment without orally pronouncing; and (3) erred

because the evidence was insufficient to support the fine.3 The State concedes error.

We affirm, as modified.

I. BACKGROUND4

Appellant pleaded guilty to the offense of aggravated sexual assault of a child, a

first-degree felony. See TEX. PENAL CODE ANN. § 22.021 (West Supp. 2011). The trial

court deferred adjudication of the offense, placed appellant on community-supervision for

ten years, and imposed a $750.00 fine. The State subsequently moved to revoke

appellant’s community supervision, alleging violations of five community-supervision

conditions. After appellant pleaded “true” to four of the violations, the trial court revoked

his community supervision and assessed punishment at sixty-five years’ confinement in

Texas Department of Criminal Justice, Institutional Division.

During its oral pronouncement of appellant’s sentence, the trial court did not

assess a fine. Nonetheless, the trial court’s judgment includes appellant’s sixty-five year

sentence and $5,440.00 in administrative fees, plus $1,365.00 in court costs, for a total of

$6,805. The Revocation Restitution/Reparation Balance Sheet for appellant shows that

the $6,805.00 includes a $750.00 fine.

2 Article 42.03 section 1(a) states, in relevant part, that a “sentence shall be pronounced in the defendant’s presence.” TEX. CRIM. CODE PROC. ANN. art. 42.03 §1(a) (West Supp. 2011). 3 We reordered appellant’s three issues for organizational purposes. 4 Because this is a memorandum opinion and the parties are familiar with the facts, we will not recite them here except as necessary to advise the parties of the Court's decision and the basic reasons for it. See TEX. R. APP. P. 47.4. 2 II. UNANNOUNCED FINE

By three related issues, appellant contends that it was improper for the trial court to

include the $750.00 fine in the judgment. Although the judgment does not specifically

itemize a $750.00 fine, appellant argues that the “administrative fees” include a $750.00

fine because the $5,440.00 in “administrative fees” and the $1,365.00 in “court costs”

cumulate to equal $6,805.00, which is the total balance for “ADMINISTRATIVE

FINANCIAL OBLIGATIONS” recorded on the Balance Sheet. Given that the Balance

Sheet specifically includes a $750.00 “fine,” appellant avers that the “administrative fees”

improperly included an unannounced fine.

The State agrees that the trial court erred by including a $750.00 fine in the

administrative fee calculation because there was no mention of the fine in the trial court’s

oral pronouncement of the sentence. Both parties ask this court to modify the judgment

by deleting $750.00 from the administrative fees in the judgment.

It is well-settled law that if a conflict between the oral pronouncement of a sentence

and the written judgment arises, the oral pronouncement controls. See, e.g., Taylor v.

State, 131 S.W.3d 497, 502 (Tex. Crim. App. 2004); Coffey v. State, 979 S.W.2d 326, 328

(Tex. Crim. App. 1998). Equally established is the rule of law that a judgment of

adjudication sets aside an antecedent order deferring adjudication, including any fines

imposed therein. See, e.g., Taylor, 131 S.W.3d at 501–02; Abron v. State, 997 S.W.2d

281, 282 (Tex. App.—Dallas 1998, pet. ref’d). After reviewing the record, we conclude

that the administrative fees in the trial court’s judgment improperly includes a $750.00 fine

3 that the trial court did not reference in its oral pronouncement of appellant’s sentence.

We sustain appellant’s sole issue.

III. REFORMATION OF JUDGMENT

An intermediate appellate court may reform a trial court’s judgment to make the

record speak the truth when it has the necessary data and information to do so. See

TEX. R. APP. P. 43.2(b); Taylor, 131 S.W.3d at 502 (“Since the judge did not orally assess

a fine as part of Taylor’s sentence when guilt was adjudicated [at the revocation hearing],

the court of appeals was correct to delete the fine from the judgment.”); Alexander v.

State, 301 S.W.3d 361, 364 (Tex. App.—Fort Worth 2009, no pet.) (reforming judgment to

delete the amount of restitution that was not orally pronounced at the conclusion of the

defendant’s revocation hearing).

IV. CONCLUSION

We reform the judgment to delete a total sum of $750.00 from the “Administrative

Fees” included in the judgment. We affirm the judgment, as modified.

GREGORY T. PERKES Justice

Do not publish. TEX. R. APP. P. 47.2(b).

Delivered and filed the 28th day of March, 2013.