NUMBER 13-24-00273-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
MIGUEL LIMON JR., Appellant,
v.
THE STATE OF TEXAS, Appellee.
ON APPEAL FROM THE 24TH DISTRICT COURT OF REFUGIO COUNTY, TEXAS
MEMORANDUM OPINION
Before Chief Justice Contreras and Justices Benavides and Tijerina Memorandum Opinion by Justice Benavides
Appellant Miguel Limon Jr. was charged with smuggling of persons, a third-degree
felony. See TEX. PENAL CODE ANN. § 20.05. Pursuant to a plea bargain agreement, Limon
was placed on deferred adjudication community supervision and assessed a $500 fine as
a condition of his supervision. The trial court subsequently revoked Limon’s supervision, adjudicated him guilty of the underlying offense, and orally pronounced his punishment
as “six years TDCJ, plus court costs.” Afterwards, the trial court signed a written judgment
of conviction that included a $500 fine. By a single issue, Limon complains that the $500
fine should be struck from the judgment because the trial court did not orally pronounce
a fine at the time of adjudication. We affirm as modified.
I. STANDARD OF REVIEW & APPLICABLE LAW
We have “the power to modify an incorrect judgment to make the record speak the
truth when we have the necessary information to do so.” Cazarez v. State, 606 S.W.3d
549, 558 (Tex. App.—Houston [1st Dist.] 2020, no pet.); see TEX. R. APP. P. 43.2(b); see
also Dang v. State, No. 13-21-00352, 2022 WL 3092560, at *3 (Tex. App.—Corpus
Christi–Edinburg Aug. 4, 2022, no pet.) (mem. op., not designated for publication). This
includes the authority to correct clerical errors in the judgment. Bigley v. State, 865
S.W.2d 26, 27 (Tex. Crim. App. 1993); see also Dang, 2022 WL 3092560, at *3.
“A defendant’s sentence must be pronounced orally in his presence. The judgment,
including the sentence assessed, is just the written declaration and embodiment of that
oral pronouncement.” Taylor v. State, 131 S.W.3d 497, 500 (Tex. Crim. App. 2004)
(citations omitted); see TEX. CODE CRIM. PROC. ANN. art. 42.03, § 1(a); see also Ex parte
Madding, 70 S.W.3d 131, 135 n.8 (Tex. Crim. App. 2002) (explaining that a defendant’s
right to be present for the oral pronouncement of sentence is rooted in constitutional due
process). In other words, “it is the pronouncement of sentence that is the appealable
event, and the written sentence or order simply memorializes it and should comport
therewith.” Ex parte Madding, 70 S.W.3d at 135 (quoting Coffey v. State, 979 S.W.2d
2 326, 328 (Tex. Crim. App. 1998)). Accordingly, “[w]hen the oral pronouncement of
sentence and the written judgment vary, the oral pronouncement controls.” Id. (“The
rationale for this rule is that the imposition of sentence is the crucial moment when all of
the parties are physically present at the sentencing hearing and able to hear and respond
to the imposition of sentence.”); see TEX. CODE CRIM. PROC. ANN. art. 42.01, § 1(8)
(providing that a “judgment shall reflect . . . that the defendant be punished in accordance
with . . . the court’s findings as to the proper punishment”). These variations are generally
considered clerical errors subject to our modification power. See Thompson v. State, 108
S.W.3d 287, 290 (Tex. Crim. App. 2003).
“A fine is punitive in nature and is part of a defendant’s sentence.” Anastassov v.
State, 664 S.W.3d 815, 820 (Tex. Crim. App. 2022). Consequently, like any other part of
a sentence, a fine must be orally pronounced in the defendant’s presence.1 Armstrong v.
State, 340 S.W.3d 759, 767 (Tex. Crim. App. 2011). Hence, we have the authority to
strike a fine from a judgment that was not orally pronounced. See 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, the Court of Appeals was correct to delete the fine from the judgment.”).
In cases such as this, where a defendant pleads guilty and is granted community
supervision in one hearing, but that supervision is revoked in a subsequent hearing, the
question of when the defendant’s sentence was pronounced depends on the type of
community supervision the defendant was placed on. With regular or “straight” community
1 As an exception to this rule, a judgment that conforms to a jury’s lawfully imposed sentence read
aloud in the defendant’s presence controls over any variation in the trial court’s oral pronouncement. Ette v. State, 559 S.W.3d 511, 515 (Tex. Crim. App. 2018). This exception does not apply here.
3 supervision, the defendant is pronounced guilty during the plea hearing and assessed a
punishment that is suspended. Coffey, 979 S.W.2d at 327, 329. If the defendant’s
community supervision is later revoked, the trial court’s pronouncement during the plea
hearing controls over any contrary statement made by the trial court during the revocation
hearing. Id. (holding that fine imposed at original plea hearing and contained in judgment
of revocation controlled over trial court’s failure to re-announce fine during revocation
hearing).
Conversely, when a defendant is granted deferred adjudication community
supervision, as occurred here, punishment is only pronounced upon revocation, and the
trial court’s oral pronouncement during the revocation hearing controls over any deviation
in the written judgment. Taylor, 131 S.W.3d at 502. This is true even when the trial court
imposes a fine as a condition of deferred adjudication community supervision but later
omits the imposition of a fine in its oral pronouncement of punishment. Id. at 498, 502.
II. ANALYSIS
Although the State acknowledges Taylor and its apparent application to this case,
the State argues that Taylor is distinguishable because the judgment adjudicating guilt in
that case included a statement that “the order deferring adjudication of guilt, and placing
defendant on community supervision heretofore entered in this case be, and the same is
hereby set aside and of no further force and effect.” Id. at 499. The State notes that the
judgment adjudicating guilt in this case does not contain a similar statement. The State
contends that “Taylor should be limited to its own factual circumstances,” and that in the
absence of a similar statement in Limon’s judgment adjudicating guilt, “this Court should
4 fall back on the reasoning in Coffe[y] that the original imposition of the fine at the time
Limon was placed on probation satisfies his right to notice and oral pronouncement.” We
disagree with the State’s narrow reading of Taylor.
The “critical distinction between deferred adjudication and regular probation,” the
Taylor Court explained, is that “when an accused receives deferred adjudication, no
sentence is imposed. Then, when guilt is adjudicated, the order adjudicating guilt sets
aside the order deferring adjudication, including the previously imposed fine.” Id. at 502.
The Taylor Court did not qualify its holding by requiring any magic language in the order
adjudicating guilt. See id.
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NUMBER 13-24-00273-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
MIGUEL LIMON JR., Appellant,
v.
THE STATE OF TEXAS, Appellee.
ON APPEAL FROM THE 24TH DISTRICT COURT OF REFUGIO COUNTY, TEXAS
MEMORANDUM OPINION
Before Chief Justice Contreras and Justices Benavides and Tijerina Memorandum Opinion by Justice Benavides
Appellant Miguel Limon Jr. was charged with smuggling of persons, a third-degree
felony. See TEX. PENAL CODE ANN. § 20.05. Pursuant to a plea bargain agreement, Limon
was placed on deferred adjudication community supervision and assessed a $500 fine as
a condition of his supervision. The trial court subsequently revoked Limon’s supervision, adjudicated him guilty of the underlying offense, and orally pronounced his punishment
as “six years TDCJ, plus court costs.” Afterwards, the trial court signed a written judgment
of conviction that included a $500 fine. By a single issue, Limon complains that the $500
fine should be struck from the judgment because the trial court did not orally pronounce
a fine at the time of adjudication. We affirm as modified.
I. STANDARD OF REVIEW & APPLICABLE LAW
We have “the power to modify an incorrect judgment to make the record speak the
truth when we have the necessary information to do so.” Cazarez v. State, 606 S.W.3d
549, 558 (Tex. App.—Houston [1st Dist.] 2020, no pet.); see TEX. R. APP. P. 43.2(b); see
also Dang v. State, No. 13-21-00352, 2022 WL 3092560, at *3 (Tex. App.—Corpus
Christi–Edinburg Aug. 4, 2022, no pet.) (mem. op., not designated for publication). This
includes the authority to correct clerical errors in the judgment. Bigley v. State, 865
S.W.2d 26, 27 (Tex. Crim. App. 1993); see also Dang, 2022 WL 3092560, at *3.
“A defendant’s sentence must be pronounced orally in his presence. The judgment,
including the sentence assessed, is just the written declaration and embodiment of that
oral pronouncement.” Taylor v. State, 131 S.W.3d 497, 500 (Tex. Crim. App. 2004)
(citations omitted); see TEX. CODE CRIM. PROC. ANN. art. 42.03, § 1(a); see also Ex parte
Madding, 70 S.W.3d 131, 135 n.8 (Tex. Crim. App. 2002) (explaining that a defendant’s
right to be present for the oral pronouncement of sentence is rooted in constitutional due
process). In other words, “it is the pronouncement of sentence that is the appealable
event, and the written sentence or order simply memorializes it and should comport
therewith.” Ex parte Madding, 70 S.W.3d at 135 (quoting Coffey v. State, 979 S.W.2d
2 326, 328 (Tex. Crim. App. 1998)). Accordingly, “[w]hen the oral pronouncement of
sentence and the written judgment vary, the oral pronouncement controls.” Id. (“The
rationale for this rule is that the imposition of sentence is the crucial moment when all of
the parties are physically present at the sentencing hearing and able to hear and respond
to the imposition of sentence.”); see TEX. CODE CRIM. PROC. ANN. art. 42.01, § 1(8)
(providing that a “judgment shall reflect . . . that the defendant be punished in accordance
with . . . the court’s findings as to the proper punishment”). These variations are generally
considered clerical errors subject to our modification power. See Thompson v. State, 108
S.W.3d 287, 290 (Tex. Crim. App. 2003).
“A fine is punitive in nature and is part of a defendant’s sentence.” Anastassov v.
State, 664 S.W.3d 815, 820 (Tex. Crim. App. 2022). Consequently, like any other part of
a sentence, a fine must be orally pronounced in the defendant’s presence.1 Armstrong v.
State, 340 S.W.3d 759, 767 (Tex. Crim. App. 2011). Hence, we have the authority to
strike a fine from a judgment that was not orally pronounced. See 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, the Court of Appeals was correct to delete the fine from the judgment.”).
In cases such as this, where a defendant pleads guilty and is granted community
supervision in one hearing, but that supervision is revoked in a subsequent hearing, the
question of when the defendant’s sentence was pronounced depends on the type of
community supervision the defendant was placed on. With regular or “straight” community
1 As an exception to this rule, a judgment that conforms to a jury’s lawfully imposed sentence read
aloud in the defendant’s presence controls over any variation in the trial court’s oral pronouncement. Ette v. State, 559 S.W.3d 511, 515 (Tex. Crim. App. 2018). This exception does not apply here.
3 supervision, the defendant is pronounced guilty during the plea hearing and assessed a
punishment that is suspended. Coffey, 979 S.W.2d at 327, 329. If the defendant’s
community supervision is later revoked, the trial court’s pronouncement during the plea
hearing controls over any contrary statement made by the trial court during the revocation
hearing. Id. (holding that fine imposed at original plea hearing and contained in judgment
of revocation controlled over trial court’s failure to re-announce fine during revocation
hearing).
Conversely, when a defendant is granted deferred adjudication community
supervision, as occurred here, punishment is only pronounced upon revocation, and the
trial court’s oral pronouncement during the revocation hearing controls over any deviation
in the written judgment. Taylor, 131 S.W.3d at 502. This is true even when the trial court
imposes a fine as a condition of deferred adjudication community supervision but later
omits the imposition of a fine in its oral pronouncement of punishment. Id. at 498, 502.
II. ANALYSIS
Although the State acknowledges Taylor and its apparent application to this case,
the State argues that Taylor is distinguishable because the judgment adjudicating guilt in
that case included a statement that “the order deferring adjudication of guilt, and placing
defendant on community supervision heretofore entered in this case be, and the same is
hereby set aside and of no further force and effect.” Id. at 499. The State notes that the
judgment adjudicating guilt in this case does not contain a similar statement. The State
contends that “Taylor should be limited to its own factual circumstances,” and that in the
absence of a similar statement in Limon’s judgment adjudicating guilt, “this Court should
4 fall back on the reasoning in Coffe[y] that the original imposition of the fine at the time
Limon was placed on probation satisfies his right to notice and oral pronouncement.” We
disagree with the State’s narrow reading of Taylor.
The “critical distinction between deferred adjudication and regular probation,” the
Taylor Court explained, is that “when an accused receives deferred adjudication, no
sentence is imposed. Then, when guilt is adjudicated, the order adjudicating guilt sets
aside the order deferring adjudication, including the previously imposed fine.” Id. at 502.
The Taylor Court did not qualify its holding by requiring any magic language in the order
adjudicating guilt. See id. Further, the holding in Taylor is consistent with the Texas Code
of Criminal Procedure, which provides, “After an adjudication of guilt, all proceedings,
including assessment of punishment, pronouncement of sentence, granting of community
supervision, and defendant’s appeal, continue as if the adjudication of guilt had not been
deferred.” TEX. CODE CRIM. PROC. ANN. art. 42A.110(a) (emphasis added). In other words,
by statute, the very act of adjudicating guilt extinguishes the order deferring adjudication.
The idea that this would not otherwise occur without a corresponding statement in the
order adjudicating guilt is simply not supported by law.
The State also argues that Taylor was “wrongly decided” and that the Court of
Criminal Appeals should reconsider its decision for various reasons. Of course, we are
bound to follow Taylor, so we will leave it to the State to pursue those arguments in the
appropriate court. See Pacas v. State, 612 S.W.3d 588, 596 (Tex. App.—Houston [1st
Dist.] 2020, pet. ref’d) (“As an intermediate court of appeals, we are bound to follow the
precedent of the court of criminal appeals.” (quoting Ervin v. State, 331 S.W.3d 49, 53
5 (Tex. App.—Houston [1st Dist.] 2010, pet. ref’d))); TEX. CONST. art. V, § 5(a) (providing
that the Court of Criminal Appeals is the final authority for criminal law in Texas). Because
the trial court did not orally pronounce a fine as part of Limon’s sentence, his sole issue
is sustained.
III. CONCLUSION
We strike the $500 fine from the judgment and affirm the judgment as modified.
GINA M. BENAVIDES Justice
Do not publish. TEX. R. APP. P. 47.2(b).
Delivered and filed on the 23rd day of December, 2024.