IN THE TENTH COURT OF APPEALS
No. 10-23-00344-CR
DERRICK LASHUN HICKS, Appellant v.
THE STATE OF TEXAS, Appellee
From the 66th District Court Hill County, Texas Trial Court No. F016-23
MEMORANDUM OPINION
Appellant, Derrick Lashun Hicks, appeals from the trial court’s judgment
adjudicating his guilt, revoking his community supervision, and sentencing him to 23
months in state jail for the offense of Theft of Property Less Than $2,500 with Two or More
Prior Convictions. See TEX. PENAL CODE ANN. § 31.03(e)(4)(D). In five issues, Appellant
challenges the validity of the trial court’s order originally placing him on deferred
adjudication community supervision, asserts that the assessed fine and restitution in the judgment adjudicating his guilt should be deleted from the written judgment and bill of
costs, and requests modification of the judgment adjudicating his guilt to reflect that he
pled “not true” to the allegations in the State’s motion to adjudicate. We modify the
“Judgment Adjudicating Guilt Nunc Pro Tunc” and the bill of costs to delete the assessed
restitution, reform the judgment to reflect that Appellant made “no plea” to the State’s
allegations, and affirm the judgment as modified.
Validity of the Order of Deferred Adjudication
In his first and second issues on appeal, Appellant challenges the validity of the
trial court’s order deferring adjudication of his guilt, arguing that the record from his
original plea proceeding does not reflect his knowing and intelligent waiver of his right
to a jury trial or his entry of a guilty plea to the charged offense.
An application for writ of habeas corpus under Article 11 of the Texas Code of
Criminal Procedure is the proper procedural vehicle to challenge the voluntariness of a
plea-bargaining defendant’s plea. See Jordan v. State, 54 S.W.3d 783, 786-87 (Tex. Crim.
App. 2001); Carnley v. State, 682 S.W.3d 287, 288 (Tex. App.—Waco 2023, no pet.); see also
TEX. CODE CRIM. PROC. ANN. art. 11.
We therefore dismiss Appellant’s first and second issues because we have no
jurisdiction to consider them.
Hicks v. State Page 2 Assessment of Fine and Restitution
In his third issue, Appellant argues that the trial court improperly imposed a fine
and restitution in the judgment adjudicating his guilt because the trial court did not orally
pronounce the fine or the restitution during sentencing at the adjudication hearing. In
his fourth issue, Appellant argues that the fine and restitution should also be deleted from
the bill of costs.
RELEVANT LAW
A trial court is required to orally pronounce a defendant’s sentence; the judgment
is merely the written declaration of that oral pronouncement. See TEX. CODE CRIM. PROC.
ANN. art. 42.01 § 1; Ex parte Madding, 70 S.W.3d 131, 135 (Tex. Crim. App. 2002). When
the record of the proceedings reflects that the oral pronouncement and written judgment
differ, the oral pronouncement controls. Id. A fine is punitive in nature and intended to
be part of a defendant’s sentence; therefore, it must be orally pronounced. See Armstrong
v. State, 340 S.W.3d 759, 767 (Tex. Crim. App. 2011); Weir v. State, 278 S.W.3d 364, 366 (Tex.
Crim. App. 2009). Restitution must also be pronounced on the record as part of a
defendant’s sentence. See Freeman v. State, 554 S.W.3d 816, 817 (Tex. App.—Waco 2018,
no pet.).
When a defendant is placed on deferred adjudication community supervision, no
sentence is imposed. See Taylor v. State, 131 S.W.3d 497, 502 (Tex. Crim. App. 2004). If the
defendant’s guilt is subsequently adjudicated, the order adjudicating guilt sets aside the
Hicks v. State Page 3 order deferring adjudication, including any previously assessed fine or restitution. See
id.; Freeman, 554 S.W.3d at 817. Therefore, in order for a fine or restitution order to be part
of the defendant’s sentence, they must be orally pronounced by the trial court when the
defendant’s guilt is adjudicated. See id.
DISCUSSION
Here, the trial court’s Order of Deferred Adjudication included a fine in the
amount of $200 and restitution to Wal-Mart in the amount of $99. After adjudicating
Appellant’s guilt, the trial court’s oral pronouncement of Appellant’s sentence included
only his term of imprisonment. Though the trial court made no mention of the fine or
restitution during sentencing, the written Judgment Adjudicating Guilt included the $200
fine and $99 restitution.
Appellant filed his notice of appeal from the trial court’s judgment adjudicating
his guilt. His original appellate counsel subsequently filed an Anders brief with this
Court. See generally Anders v. California, 386 U.S. 738 (1967). After our independent review
of the record revealed that arguable grounds for appeal existed, including that Appellant
was assessed a fine in the written judgment that was not pronounced orally at sentencing
when his guilt was adjudicated, we abated this appeal for the trial court to withdraw the
appointment of the original counsel and appoint new counsel to pursue this appeal.
Along with the trial court’s order appointing new appellate counsel, the trial court clerk
filed in this Court a “Judgment Adjudicating Guilt Nunc Pro Tunc” entered while the
Hicks v. State Page 4 appeal was abated, as well as a new certified bill of costs. In the nunc pro tunc judgment,
the trial court deleted the $200 fine. The accompanying bill of costs indicates that
Appellant will not have to pay the fine due to his indigent status. However, the $99
restitution order is still assessed in the nunc pro tunc judgment and in the accompanying
bill of costs.
Because the trial court’s Judgment Adjudicating Guilt Nunc Pro Tunc and
accompanying bill of costs resolved Appellant’s complaints in his third and fourth issues
about the assessment of the $200 fine, the complaints regarding the fine are moot and we
dismiss those complaints. See Palacio v. State, 685 S.W.3d 160, 162-63 (Tex. App.—Waco
2023, no pet.). However, because the trial court did not orally pronounce the $99
restitution order when Appellant was adjudicated, we sustain Appellant’s third and
fourth issues, in part, and modify the Judgment Adjudicating Guilt Nunc Pro Tunc and
the bill of costs to delete the assessed $99 restitution order.
Plea to the State’s Motion to Adjudicate
The Judgment Adjudicating Guilt Nunc Pro Tunc currently reflects that Appellant
pled “True” to the allegations in the State’s motion to proceed to adjudication of guilt. In
his fifth issue, Appellant requests that we modify the judgment to reflect that he contested
the allegations in the State’s motion to adjudicate and suggests that the judgment should
state that he pled “not true.” The State is not opposed to the requested modification.
Hicks v. State Page 5 The record supports the parties’ agreement that the written judgment adjudicating
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IN THE TENTH COURT OF APPEALS
No. 10-23-00344-CR
DERRICK LASHUN HICKS, Appellant v.
THE STATE OF TEXAS, Appellee
From the 66th District Court Hill County, Texas Trial Court No. F016-23
MEMORANDUM OPINION
Appellant, Derrick Lashun Hicks, appeals from the trial court’s judgment
adjudicating his guilt, revoking his community supervision, and sentencing him to 23
months in state jail for the offense of Theft of Property Less Than $2,500 with Two or More
Prior Convictions. See TEX. PENAL CODE ANN. § 31.03(e)(4)(D). In five issues, Appellant
challenges the validity of the trial court’s order originally placing him on deferred
adjudication community supervision, asserts that the assessed fine and restitution in the judgment adjudicating his guilt should be deleted from the written judgment and bill of
costs, and requests modification of the judgment adjudicating his guilt to reflect that he
pled “not true” to the allegations in the State’s motion to adjudicate. We modify the
“Judgment Adjudicating Guilt Nunc Pro Tunc” and the bill of costs to delete the assessed
restitution, reform the judgment to reflect that Appellant made “no plea” to the State’s
allegations, and affirm the judgment as modified.
Validity of the Order of Deferred Adjudication
In his first and second issues on appeal, Appellant challenges the validity of the
trial court’s order deferring adjudication of his guilt, arguing that the record from his
original plea proceeding does not reflect his knowing and intelligent waiver of his right
to a jury trial or his entry of a guilty plea to the charged offense.
An application for writ of habeas corpus under Article 11 of the Texas Code of
Criminal Procedure is the proper procedural vehicle to challenge the voluntariness of a
plea-bargaining defendant’s plea. See Jordan v. State, 54 S.W.3d 783, 786-87 (Tex. Crim.
App. 2001); Carnley v. State, 682 S.W.3d 287, 288 (Tex. App.—Waco 2023, no pet.); see also
TEX. CODE CRIM. PROC. ANN. art. 11.
We therefore dismiss Appellant’s first and second issues because we have no
jurisdiction to consider them.
Hicks v. State Page 2 Assessment of Fine and Restitution
In his third issue, Appellant argues that the trial court improperly imposed a fine
and restitution in the judgment adjudicating his guilt because the trial court did not orally
pronounce the fine or the restitution during sentencing at the adjudication hearing. In
his fourth issue, Appellant argues that the fine and restitution should also be deleted from
the bill of costs.
RELEVANT LAW
A trial court is required to orally pronounce a defendant’s sentence; the judgment
is merely the written declaration of that oral pronouncement. See TEX. CODE CRIM. PROC.
ANN. art. 42.01 § 1; Ex parte Madding, 70 S.W.3d 131, 135 (Tex. Crim. App. 2002). When
the record of the proceedings reflects that the oral pronouncement and written judgment
differ, the oral pronouncement controls. Id. A fine is punitive in nature and intended to
be part of a defendant’s sentence; therefore, it must be orally pronounced. See Armstrong
v. State, 340 S.W.3d 759, 767 (Tex. Crim. App. 2011); Weir v. State, 278 S.W.3d 364, 366 (Tex.
Crim. App. 2009). Restitution must also be pronounced on the record as part of a
defendant’s sentence. See Freeman v. State, 554 S.W.3d 816, 817 (Tex. App.—Waco 2018,
no pet.).
When a defendant is placed on deferred adjudication community supervision, no
sentence is imposed. See Taylor v. State, 131 S.W.3d 497, 502 (Tex. Crim. App. 2004). If the
defendant’s guilt is subsequently adjudicated, the order adjudicating guilt sets aside the
Hicks v. State Page 3 order deferring adjudication, including any previously assessed fine or restitution. See
id.; Freeman, 554 S.W.3d at 817. Therefore, in order for a fine or restitution order to be part
of the defendant’s sentence, they must be orally pronounced by the trial court when the
defendant’s guilt is adjudicated. See id.
DISCUSSION
Here, the trial court’s Order of Deferred Adjudication included a fine in the
amount of $200 and restitution to Wal-Mart in the amount of $99. After adjudicating
Appellant’s guilt, the trial court’s oral pronouncement of Appellant’s sentence included
only his term of imprisonment. Though the trial court made no mention of the fine or
restitution during sentencing, the written Judgment Adjudicating Guilt included the $200
fine and $99 restitution.
Appellant filed his notice of appeal from the trial court’s judgment adjudicating
his guilt. His original appellate counsel subsequently filed an Anders brief with this
Court. See generally Anders v. California, 386 U.S. 738 (1967). After our independent review
of the record revealed that arguable grounds for appeal existed, including that Appellant
was assessed a fine in the written judgment that was not pronounced orally at sentencing
when his guilt was adjudicated, we abated this appeal for the trial court to withdraw the
appointment of the original counsel and appoint new counsel to pursue this appeal.
Along with the trial court’s order appointing new appellate counsel, the trial court clerk
filed in this Court a “Judgment Adjudicating Guilt Nunc Pro Tunc” entered while the
Hicks v. State Page 4 appeal was abated, as well as a new certified bill of costs. In the nunc pro tunc judgment,
the trial court deleted the $200 fine. The accompanying bill of costs indicates that
Appellant will not have to pay the fine due to his indigent status. However, the $99
restitution order is still assessed in the nunc pro tunc judgment and in the accompanying
bill of costs.
Because the trial court’s Judgment Adjudicating Guilt Nunc Pro Tunc and
accompanying bill of costs resolved Appellant’s complaints in his third and fourth issues
about the assessment of the $200 fine, the complaints regarding the fine are moot and we
dismiss those complaints. See Palacio v. State, 685 S.W.3d 160, 162-63 (Tex. App.—Waco
2023, no pet.). However, because the trial court did not orally pronounce the $99
restitution order when Appellant was adjudicated, we sustain Appellant’s third and
fourth issues, in part, and modify the Judgment Adjudicating Guilt Nunc Pro Tunc and
the bill of costs to delete the assessed $99 restitution order.
Plea to the State’s Motion to Adjudicate
The Judgment Adjudicating Guilt Nunc Pro Tunc currently reflects that Appellant
pled “True” to the allegations in the State’s motion to proceed to adjudication of guilt. In
his fifth issue, Appellant requests that we modify the judgment to reflect that he contested
the allegations in the State’s motion to adjudicate and suggests that the judgment should
state that he pled “not true.” The State is not opposed to the requested modification.
Hicks v. State Page 5 The record supports the parties’ agreement that the written judgment adjudicating
guilt incorrectly reflects that Appellant pled “true” to the allegations in the State’s motion
to adjudicate. However, rather than a plea of “not true,” the record reflects that the trial
court did not ask for – and Appellant did not enter – any plea to the allegations in the
State’s motion to adjudicate.1 A court of appeals has authority to correct or reform a
judgment to make a record speak the truth when it has the information to do so. See TEX.
R. APP. P. 43.2(b); see also Bigley v. State, 865 S.W.2d 26, 27-28 (Tex. Crim. App. 1993). As
such, we sustain Appellant’s fifth issue, in part, and modify the nunc pro tunc judgment
to reflect a “no plea” entry under the heading “Plea to Motion to Adjudicate.”
Conclusion
The Judgment Adjudicating Guilt Nunc Pro Tunc and the bill of costs are modified
to delete the $99 order of restitution. The nunc pro tunc judgment is further modified to
reflect that Appellant entered “no plea” to the State’s allegations. Having dismissed all
of Appellant’s other issues on appeal, we affirm the judgment of the trial court as
modified.2
STEVE SMITH Justice
1See Detrich v. State, 545 S.W.2d 835, 837 (Tex. Crim. App. 1977) (holding that due process does not require that a plea be entered in a revocation proceeding); see also Spencer v. State, No. 02-21-00240-CR, 2022 Tex. App. LEXIS 8632, 2022 WL 17173133, at *9-10 (Tex. App.—Fort Worth Nov. 23, 2022, no pet.) (mem. op., not designated for publication) (applying Detrich to an adjudication proceeding).
2 All pending motions are dismissed as moot.
Hicks v. State Page 6 Before Chief Justice Gray, Justice Johnson, and Justice Smith (Chief Justice Gray dissents) Affirmed as modified Opinion delivered and filed November 14, 2024 Do not publish [CR25]
Hicks v. State Page 7