MODIFY and AFFIRM; and Opinion Filed June 6, 2016.




                                         S    In The
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                      No. 05-15-00162-CR

                          JASMINE JAMIEL SIMMONS, Appellant

                                                V.

                              THE STATE OF TEXAS, Appellee

                      On Appeal from the Criminal District Court No. 3
                                   Dallas County, Texas
                            Trial Court Cause No. F-1475553-J

                             MEMORANDUM OPINION
                         Before Justices Francis, Lang-Miers, and Myers
                                 Opinion by Justice Lang-Miers
       Jasmine Jamiel Simmons appeals his conviction for sexual assault.           After appellant

pleaded not guilty, a jury found appellant guilty and assessed punishment at thirty-eight years’

confinement and a $2000 fine. In a single issue, appellant argues that this court lacks jurisdiction

over this appeal because appellant’s sentence was not orally pronounced in appellant’s presence.

Because all dispositive issues are settled in law, we issue this memorandum opinion. TEX. R.

APP. P. 47.2(a), 47.4. We modify the trial court’s judgment and affirm as modified.

                                          BACKGROUND

       Appellant’s attorney filed a brief in support of her motion to withdraw in which she

concludes the appeal is wholly frivolous and without merit under the standards of Anders v.

California, 386 U.S. 738, 744 (1967). But in the brief, appellant’s attorney states that “[i]t
appears that as a threshold matter, this Court lacks jurisdiction over this appeal because sentence

was not orally pronounced in Appellant’s presence.” This Court concluded that the brief raises

an arguable issue concerning the failure of the trial court to pronounce the sentence in appellant’s

presence, denied counsel’s motion to withdraw, and ordered that this appeal proceed as a non-

Anders case and that appellant’s counsel remain as his counsel. 1 The State filed its brief in

response, arguing that the trial court’s oral pronouncement was clear in context.

                                                   ORAL PRONOUNCEMENT

                                                            Background

          When the jury returned its punishment verdict, the following exchange occurred:

          THE COURT: And were you-all able to reach a verdict?

          PRESIDING JUROR: We were.

          THE COURT: Can I have you-all stand?

                  The verdict form reads as follows: We, the jury, having found the
          defendant, Jasmine Jamiel Simmons, guilty of the offense of Sexual Assault, as
          charged in the indictment, find that all of the allegations contained in Paragraph 2
          of the indictment are true, and we assess the defendant’s punishment at
          confinement in the Institutional Division of the Texas Department of Criminal
          Justice for 38 years and a fine of $2,000.

                     Is that, in fact, your verdict?

          PRESIDING JUROR: Yes, it is.

          THE COURT: Is the State asking that the jury panel—that the jury be polled.

          [PROSECUTOR]: No, your honor.

          THE COURT: Is the Defense?

          [DEFENSE COUNSEL]: No.



     1
       After this Court issued its order that this case proceed as a non-Anders case, appellant filed a letter response. Because appellant is
represented by counsel, we do not consider his pro se letter response. See Rudd v. State, 616 S.W.2d 623, 625 (Tex. Crim. App. [Panel Op.]
1981) (appellant not entitled to hybrid representation.).



                                                                   –2–
THE COURT: Okay. You may be seated.

         All right. That completes your service. You are released from any
restrictions. You can talk to who you want to talk to. Don’t talk to who you don’t
want to talk to. It’s totally up to you. We appreciate your time. We appreciate
your attention.

       [Juror], I appreciate you being on time this morning.

A JUROR: Yes, ma’am.

THE COURT: So you-all are released. Thank you.

DEPUTY CRUMP: All rise.

(Open court, defendant present, no jury.)

THE COURT: Okay. [Defense counsel], before you walk out.

[DEFENSE COUNSEL]: Yes, ma’am.

THE COURT: You-all may be seated.

       Is there any reason under the law why your client’s—

[DEFENSE COUNSEL]: I’m sorry.

THE COURT: —judgment should not be assessed against your client at this time?

[DEFENSE COUNSEL]: No.

THE COURT: It is the order, judgment, and decree of this court that the
defendant be taken by the sheriff of Dallas County and by her safely held until he
can be turned over to the authorized receiving agent for the Texas Department of
Criminal Justice Institutional Division.

       The Court—[Defense counsel], make sure that his certification to his right
to appeal and his notice of appeal are signed today before he leaves.

[DEFENSE COUNSEL]: That’s what I’m doing now, Judge.

THE COURT: All right. Thank you.




                                       –3–
                                          Applicable Law

       A defendant’s sentence must be pronounced orally in the defendant’s presence. TEX.

CODE CRIM. PROC. ANN. art. 42.03 § 1(a) (West Supp. 2015); Taylor v. State, 131 S.W.3d 497,

500 (Tex. Crim. App. 2004). The judgment, including the assessed sentence, is “the written

declaration and embodiment of that oral pronouncement.” Taylor, 131 S.W.3d at 500; see TEX.

CODE CRIM. PROC. ANN. art. 42.01 § 1 (West Supp. 2015). “When there is a conflict between the

oral pronouncement of sentence and the sentence in the written judgment, the oral

pronouncement controls.” Taylor, 131 S.W.3d at 500; see Coffey v. State, 979 S.W.2d 326, 328

(Tex. Crim. App. 1998).        But where the oral pronouncement is ambiguous, “the jury’s

punishment verdict, the court’s pronouncement, and the written judgment should be read

together in an effort to resolve the ambiguity.” Aguilar v. State, 202 S.W.3d 840, 843 (Tex.

App.—Waco 2006, pet. ref’d). The context of the court’s utterances should also be considered.

See Hill v. State, 213 S.W.3d 533, 536–37 (Tex. App.—Texarkana 2007, no pet.) (“[T]he context

of the oral pronouncement makes clear that all understood the pronouncement to be what was

ultimately incorporated into the written order.”).

                                     Arguments of the Parties

       Appellant argues that it appears “this Court lacks jurisdiction over this appeal because

sentence was not orally pronounced in Appellant’s presence” and that the proper remedy is

abatement. Appellant contends the trial court’s pronouncement “clearly does not constitute a

‘sentence’ as required by the Code of Criminal Procedure” and states that “no general reference

was made to the jury’s verdict, nor was any reference made to the number of years assessed by

the jury.” The State argues that, although the oral pronouncement was arguably ambiguous,

when read in context, “it is clear that the oral pronouncement incorporated the verdict” and was

sufficient to confer jurisdiction on this Court.

                                                   –4–
                                                                Analysis

          Directly before the court pronounced “that the defendant be taken by the sheriff of Dallas

County and by her safely held until he can be turned over to the authorized receiving agent for

the Texas Department of Criminal Justice Institutional Division[,]” the court read the jury’s

verdict form aloud, in which the jury assessed appellant’s punishment at thirty-eight years’

imprisonment and a $2,000 fine, and confirmed with the presiding juror that the sentence that she

read reflected the jury’s verdict. The court then confirmed that neither the State nor the defense

requested a poll of the jury, dismissed the jury, inquired whether there was any legal reason why

appellant should not be sentenced, and then immediately stated that appellant would be taken by

the sheriff to be safely held until he can be turned over to appropriate authorities. The written

judgment is consistent with the jury’s verdict concerning appellant’s term of imprisonment. 2 The

context of the oral pronouncement makes clear that all understood that pronouncement to be the

verdict that the jury had just returned. See Hill, 213 S.W.3d at 536. We read the jury’s verdict,

the oral pronouncement, and the written judgment together to reflect appellant’s sentence of

thirty-eight years’ imprisonment and a $2,000 fine. See Aguilar, 202 S.W.3d at 843.

          We overrule appellant’s sole issue.

                                                MODIFICATION OF JUDGMENT

          The judgment states that no fine was assessed against appellant.              The record

demonstrates, however, that the jury assessed a fine of $2,000. This Court has the power to

modify the judgment of the court below to make the record speak the truth when we have the

necessary information to do so. 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). We modify the judgment to reflect that appellant was assessed a fine of $2,000.

   2
       As discussed below, we modify the written judgment to include the $2,000 fine.



                                                                    –5–
                                       CONCLUSION

       We resolve appellant’s sole issue against him, modify the trial court’s judgment, and

affirm the judgment as modified.




                                                  /Elizabeth Lang-Miers/
                                                  ELIZABETH LANG-MIERS
                                                  JUSTICE


Do Not Publish
Tex. R. App. P. 47.2(b)

150162F.U05




                                            –6–
                                        S
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                      JUDGMENT

JASMINE JAMIEL SIMMONS, Appellant                    On Appeal from the Criminal District Court
                                                     No. 3, Dallas County, Texas
No. 05-15-00162-CR         V.                        Trial Court Cause No. F-1475553-J.
                                                     Opinion delivered by Justice Lang-Miers,
THE STATE OF TEXAS, Appellee                         Justices Francis and Myers participating.


        Based on the Court’s opinion of this date, the judgment of the trial court is MODIFIED
to include a fine of $2000.

       As MODIFIED, the judgment is AFFIRMED.


Judgment entered this 6th day of June, 2016.




                                               –7–
