                                      In The

                                Court of Appeals
                    Ninth District of Texas at Beaumont
                           ____________________
                              NO. 09-13-00489-CR
                           ____________________

                      JAMES LEE WILLIAMS, Appellant

                                         V.

                       THE STATE OF TEXAS, Appellee
_______________________________________________________            ______________

                  On Appeal from the Criminal District Court
                          Jefferson County, Texas
                         Trial Cause No. 11-13092
________________________________________________________             _____________

                          MEMORANDUM OPINION

      In his appeal from the revocation of an order placing him on deferred

adjudication community supervision, James Lee Williams challenges the trial

court’s judgment because it includes a provision requiring that he pay restitution to

the victim. According to Williams, the trial court did not impose a restitution

requirement when it pronounced his sentence; he concludes that because the

requirement was not imposed when the trial court pronounced his sentence, the

trial court erred by including it in the written judgment. The State agrees; it

suggests that we reform the written judgment. We agree the judgment should be
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conformed to the sentence that the trial court orally pronounced, and we reform the

judgment by deleting the language requiring Williams to pay restitution to the

victim.

       The record shows that during the revocation hearing, Williams pled “true” to

violating several conditions of the trial court’s community supervision order. At

the conclusion of the hearing, the trial court revoked its order, found Williams

guilty of aggravated robbery, and sentenced Williams to life in prison. The record

further shows that the trial court did not orally pronounce any requirement

obligating Williams to pay restitution to the victim of his crime. However, the trial

court’s written judgment includes a provision requiring Williams to pay $6,000 in

restitution.

       A trial court is required to orally pronounce a defendant’s sentence; the

judgment is merely the written declaration and embodiment of that oral

pronouncement. Tex. Code. Crim. Proc. Ann. art. 42.01 § 1 (West Supp. 2014); 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. Ex parte Huskins, 176 S.W.3d 818, 820 (Tex.

Crim. App. 2005). The Court of Criminal Appeals has held that restitution is a

punishment that is required to be orally pronounced at sentencing, and without

having been orally pronounced, restitution cannot be imposed on the defendant in

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the written judgment. Ex parte Cavazos, 203 S.W.3d 333, 338 (Tex. Crim. App.

2006). To be valid, the restitution requirement must be included when the trial

court orally pronounces the defendant’s sentence. Saucedo v. State, 309 S.W.3d

767, 769 (Tex. App.—Amarillo 2010, pet. ref’d); Alexander v. State, 301 S.W.3d

361, 364 (Tex. App.—Fort Worth, 2009, no pet.). When a restitution order is

included in the written judgment but it was not orally pronounced at sentencing,

the proper remedy is to modify or reform the judgment to delete the order requiring

restitution. Saucedo, 309 S.W.3d at 769.

      Although the record shows that the trial court attempted to correct its error

by entering a judgment nunc pro tunc, it no longer had jurisdiction to act in the

case when it did so. Rule 23.1 of the Texas Rules of Appellate Procedure vests a

trial court with the authority to correct clerical mistakes or errors in a judgment

through entry of a judgment nunc pro tunc unless the defendant has appealed. Tex.

R. App. P. 23.1. Additionally, Rule 25.2(g) of the Rules of Appellate Procedure

states that, “[o]nce the record has been filed in the appellate court, all further

proceedings in the trial court—except as provided by law or by these rules—will

be suspended until the trial court receives the appellate-court mandate.” Tex. R.

App. P. 25.2(g). Because the restitution order was not orally pronounced at

sentencing, we sustain Williams’s issues on appeal. We reform the judgment to

delete the restitution order.

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      Accordingly, in Cause Number 11-13092, on page one of the judgment,

under “Restitution[,]” we delete “$6000.00[.]” Also on page one, under

“Restitution Payable to[,]” we delete the “X” in the “VICTIM” box and under

“(see below)” we delete the victim’s name and address. On page two of the

judgment under the heading “Punishment Options[,]” we amend the language

requiring the defendant to pay “any remaining unpaid fines, court costs, and

restitution” to read: “Once there, the Court ORDERS Defendant to pay, or make

arrangements to pay, any remaining unpaid fines and court costs as ordered by the

Court above.” As modified, the trial court’s judgment is affirmed.

      AFFIRMED AS MODIFIED.




                                             ________________________________
                                                       HOLLIS HORTON
                                                           Justice

Submitted on July 22, 2014
Opinion Delivered October 22, 2014
Do Not Publish

Before Kreger, Horton and Johnson, JJ.




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