Kevin Lamont Garden v. State

• Court: Court of Appeals of Texas
• Decided: April 3, 2015
• Docket: 05-13-01507-CR
• Status: Published

Opinion

MODIFY and AFFIRM; and Opinion Filed April 3, 2015.

In The Court of Appeals Fifth District of Texas at Dallas No. 05-13-01507-CR

KEVIN LAMONT GARDEN, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 282nd Judicial District Court Dallas County, Texas Trial Court Cause No. F10-57354-S

MEMORANDUM OPINION Before Justices Lang, Stoddart, and Schenck Opinion by Justice Schenck

Kevin Lamont Garden appeals his conviction, following the adjudication of his guilt, for

aggravated robbery with a deadly weapon. In a single issue, appellant contends the trial court’s

judgment should be modified to delete the fine. The State agrees the fine should be deleted from

the judgment. We modify the trial court’s judgment adjudicating guilt and affirm as modified.

Appellant waived a jury and pleaded guilty to aggravated robbery with a deadly weapon,

a firearm. See TEX. PENAL CODE ANN. § 29.03(a)(2) (West 2011). The trial court deferred

adjudicating guilt, placed appellant on seven years’ community supervision, and assessed a

$2,500 fine. The State later moved to adjudicate guilt, alleging appellant violated several conditions of his community supervision. Following a hearing at which appellant pleaded true to

the allegations, the trial court adjudicated appellant guilty of aggravated robbery with a deadly

weapon and assessed punishment at twelve years’ imprisonment. The trial judge did not orally

pronounce a fine. The trial court’s judgment adjudicating guilt, however, includes a $2,500 fine.

When a variation between the oral pronouncement of the sentence and the written

memorialization of the sentence exists, the oral pronouncement controls. See Coffey v. State, 979

S.W.2d 326, 329 (Tex. Crim. App. 1998); see also McCoy v. State, 81 S.W.3d 917, 919 (Tex.

App.—Dallas 2002, pet. ref’d). We sustain appellant’s sole issue. We modify the judgment

adjudicating guilt to delete the fine. See TEX. R. APP. P. 43.2(b); Bigley v. State, 865 S.W.2d 26,

27–28 (Tex. Crim. App. 1993); Asberry v. State, 813 S.W.2d 526, 529–30 (Tex. App.—Dallas

1991, pet. ref'd).

As modified, we affirm the trial court’s judgment adjudicating guilt.

/David J. Schenck/ DAVID J. SCHENCK JUSTICE

Do Not Publish TEX. R. APP. P. 47

131507F.U05

-2- Court of Appeals Fifth District of Texas at Dallas

JUDGMENT

KEVIN LAMONT GARDEN, Appellant Appeal from the 282nd Judicial District Court of Dallas County, Texas (Tr.Ct.No. No. 05-13-01507-CR V. F10-57354-S). Opinion delivered by Justice Schenck, THE STATE OF TEXAS, Appellee Justices Lang and Stoddart participating.

Based on the Court’s opinion of this date, the trial court’s judgment adjudicating guilt is MODIFIED as follows:

The section entitled “Fine” is modified to show “None.”

As modified, we AFFIRM the trial court’s judgment adjudicating guilt.

Judgment entered April 3, 2015.

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