

                                                             11th
Court of Appeals
                                                                  Eastland,
Texas
                                                                        Opinion
Ronald Ray Taylor
Appellant
Vs.                   No.
11-01-00232-CR  -- Appeal from Dallas
County
State of Texas                                                                                                              
Appellee
 
The trial
court granted the State=s motion to set aside the order deferring adjudication of guilt and
placing Ronald Ray Taylor on community supervision.  The trial court then found that he was guilty of sexual assault
and assessed his punishment at confinement for 4 years and a fine of $300.  We modify and affirm. 
                                                                  Issue
Presented
The only
issue presented for appellate review reads in full as shown:
The
judgment should be reformed to delete the fine since the trial court did not
orally pronounce the fine at the time of adjudication.
 
                                                                Background
Facts
The
indictment charged that, on or about September 14, 1996, appellant
intentionally caused the penetration of the complainant=s female sexual organ by his sexual
organ.  Pursuant to a “Plea Bargain
Agreement” which was signed, verified, and filed on September 16, 1997,
appellant waived his right to a trial by jury and made a judicial confession of
guilt.  Appellant and his attorney
appeared in court to assure the court that appellant had voluntarily waived his
rights and admitted his guilt, and the trial court entered its order on that
date placing appellant on community supervision for 10 years and assessing a
fine of $300.  The fine was not
probated.
The State=s first motion to adjudicate was filed on
March 25, 1998.  That motion was amended
on February 5, 1999.  The amended motion
was not served until August 8, 2000. 
Appellant entered a plea of  “true”
to the allegations that he violated the conditions of community
supervision.  The trial court did not
grant the motion to revoke, but it amended the conditions in order to require
intensive supervision.
The State=s second motion to adjudicate was filed on
October 9, 2000.  The State later
withdrew that motion, and appellant was released from jail.




The State=s third motion to adjudicate was filed on
February 29, 2001.  The motion was not
served until May 21, 2001.  Appellant
entered a plea of “true” to the allegations that he violated the conditions of
community supervision.  The court=s judgment is dated June 1, 2001, and it
provides:
It is
therefore ordered, adjudged and decreed by the Court that the order deferring
adjudication of guilt, and placing defendant on community supervision
heretofore entered in this cause be, and the same is hereby set aside and of
no further force and effect.
 
It is
therefore considered and adjudged by the Court, that the said defendant is
guilty...and that defendant be punished by confinement [for 4 years].
 
                                                            *   *  
*
 
It is further ordered that Defendant pay the
fine [of $300].  (Emphasis added)
 
                                                           The
Adjudication Hearing
The
reporter=s record 
for this hearing shows that appellant had discussed the State=s motion to adjudicate with his attorney,
that he understood the allegations in the motion, and that he understood that
if the court found that any of those allegations were “true” that the court
could adjudicate his guilt and sentence him to “anywhere from 2 to 20 years in
the penitentiary.”  The record shows
that appellant was “entering a plea of true” and asking the court to determine
what his punishment should be.
After
appellant testified in support of his request for the court to permit him to
remain on community supervision, the reporter=s record reads in relevant part as shown: 
[DEFENSE
COUNSEL]:  I think if given the opportunity
now that he is no longer homeless and on the streets that he can finish out his
probation. And we ask that he be given that opportunity.
 
[PROSECUTOR]:
Judge, [appellant] has had several opportunities to try to get his probation
together...and there is really nothing left for us to do but adjudicate him.
 
                                                            *   *  
*
 
THE COURT:
[Appellant], the Court finds that the waiver of your rights, your pleas of
true, and your judicial confessions were freely and voluntarily made.
 




The Court further finds
that the evidence presented has shown by a preponderance of the evidence that
you did violate [several conditions] of your community supervision as alleged
in the motion to proceed with an adjudication of guilt.
 
[Appellant], you present
a difficult case.  And since ‘97, this
is the third time you have been back here for various reasons.
 
                                                            *   *  
*
 
So it is the judgment of
the Court that the motion is granted. 
Your guilt is hereby adjudicated based upon your previous plea of guilty
and the Court sentences you to a term of imprisonment for four years in the
Institutional Division of the Texas Department of Criminal Justice.  (Emphasis added)
 
                                                   Conflict
of Authority
We will
follow the holding of the Dallas Court of Appeals in Abron v. State, 997 S.W.2d
281, 282 (Tex.App. - Dallas 1998, pet=n ref=d):
In the context of the
revocation of regular probation, the Court of Criminal Appeals recently held
that an unprobated fine, orally imposed at the original plea hearing, may be
included in the judgment revoking probation even though the fine was not re-pronounced
at the revocation hearing.  See Coffey
v. State, 979 S.W.2d 326, 329 (Tex.Crim.App.1998).  Where, however, an accused receives deferred adjudication,
there is no sentence imposed.  See
Davis v. State, 968 S.W.2d 368, 371 (Tex.Crim.App.1998); Hammack v. State, 963
S.W.2d 199, 200 (Tex.App. - Austin 1998, no pet.).  The trial court=s Judgment Adjudicating Guilt expressly sets aside the underlying
deferred adjudication order and declares it to be Aof no further force and effect.@  Accordingly, we conclude that
the ultimate result of Coffey does not control the outcome of this case.
 
Appellant is entitled to
have his sentence, including the assessment of any fines, pronounced in his
presence.  See TEX. CODE CRIM. PROC.
ANN. art. 42.03, ' 1(a)
(Vernon Supp. 1998); Marshall v. State, 860 S.W.2d 142, 143 (Tex.App. - Dallas
1993, no pet.).  Where a conflict
exists between the oral pronouncement and written memorialization of the
sentence, the oral pronouncement controls. 
See Coffey, at 328.  The
record shows the trial court did not assess a fine as part of appellant=s sentence following adjudication of
guilt.  We have the power to modify
incorrect judgments when the necessary data and information is available to do
so.  See TEX. R. APP. P. 43.2(b).  (Emphasis added) 
 
See
also McCoy v. State, 81 S.W.3d 917, 919 (Tex.App. - Dallas 2002, pet=n ref=d), where the court said:




In Abron, the
trial court adjudicated the guilt of a defendant who had previously been on
deferred adjudication community supervision. 
Abron, 997 S.W.2d at 281. 
The trial court had assessed a $2,000 fine as a condition of community
supervision but did not pronounce the fine when it sentenced Abron after
adjudicating his guilt.  Id.  The written judgment included the $2,000
fine.  Id.  We reasoned that, because deferring adjudication did not
impose a “sentence,” the fine imposed as a condition of deferred adjudication
community supervision was not part of the sentence ultimately assessed against
Abron.  Id. at 282.  We modified the trial court=s judgment to delete the fine.
 
                                                            *   *  
*
 
We conclude Abron=s holding is still sound....By adjudicating
guilt, the trial court supplants its previous order deferring adjudication of
guilt and imposing community supervision. 
The order adjudicating appellant=s guilt in this case specifically “set aside” the order deferring
adjudication.  Therefore, there was
no longer a fine imposed on appellant [and] the entire punishment range for
appellant=s offense was open to the trial court.  This differs from the revocation of a
probated sentence, where a previously announced sentence is imposed.  (Emphasis added)
 
We expressly disagree
with the holding in Laury v. State, 100 S.W.3d 530, 533 (Tex.App. - El Paso
2003, no pet=n), where the court said:
We therefore believe Abron is
distinguishable and Coffey is controlling.  We hold that where the record affirmatively demonstrates that a
fine assessed in deferred adjudication probation was not probated, there is no
requirement to repeat the oral pronouncement previously given the defendant.
 
We sustain
the issue presented for appellate review, and the judgment of the trial court
will be modified pursuant to TEX.R.APP.P. 43.2(b).
                                                    This
Court=s Ruling
The
judgment of the trial court is modified to eliminate the requirement that
appellant pay the $300 fine; as modified, the judgment is affirmed.
 
July 3, 2003                                                                 BOB DICKENSON
Publish. 
See TEX.R.APP.P. 47.2(b).                           SENIOR JUSTICE
Panel consists of:  Arnot, C.J., and
McCall, J., and
Dickenson, S.J.[1]




[1]Bob Dickenson, Retired Justice, Court of Appeals, 11th
District of Texas at Eastland sitting by assignment.


