                            NUMBER 13-10-00148-CR

                            COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                     CORPUS CHRISTI - EDINBURG

OSCAR GARCIA JR.,                                                         Appellant,

                                          v.

THE STATE OF TEXAS,                                                        Appellee.


                   On appeal from the 156th District Court
                          of Bee County, Texas.


                        MEMORANDUM OPINION
 Before Chief Justice Valdez and Justices Rodriguez, and Benavides
            Memorandum Opinion by Justice Benavides
      Appellant, Oscar Garcia Jr., was sentenced to ten years’ deferred adjudication

probation for indecency with a child. TEX. PENAL CODE ANN. § 21.11 (West 2003). His

probation was revoked and he was sentenced to eight years’ confinement in the Texas

Department of Criminal Justice–Institutional Division.   By two issues, Garcia contends
that:   (1) the trial court abused its discretion when it revoked his community supervision;

and (2) trial court erred in assessing a fine outside of his presence.      See TEX. CODE

CRIM. PROC. ANN. arts. 42.12, § 21.11; 42.03, § 1(a) (West 2009). We affirm.

                                    I. BACKGROUND

        Garcia was convicted of indecency with a child in October 2000 and was placed

on a ten-year term of deferred adjudication probation.     TEX. PENAL CODE ANN. § 21.11

(West 2003).     Over the course of ten years, the State filed three motions to revoke

Garcia’s probation. The first motion to revoke community supervision, filed on October

4, 2001, alleged that Garcia violated his probation by accompanying a person under the

age of eighteen without the presence of the minor’s parent or parents.         The second

motion to revoke, filed on March 8, 2007, alleged that Garcia violated his probation by

accompanying four persons under the age of eighteen without the presence of the

minors’ parent or parents and that he failed to participate in a weekly sex offender

therapy program.     The third motion to revoke, filed on April 14, 2009, alleged that

Garcia violated his probation by being within one-thousand feet of a public park where

children were under eighteen years of age.       On each occasion, the court denied the

State’s motion to revoke and Garcia was allowed to continue on probation.

        However, on October 16, 2009, the State filed a fourth motion to revoke

community supervision, which resulted in a revocation hearing and the instant appeal.

The fourth motion to revoke alleged that Garcia violated the terms and conditions of his

community supervision when he was found at a residence within one-thousand feet of a

school zone.    Garcia pled true to the alleged violation of his community supervision and

the court ordered his probation to be revoked.    The court adjudicated Garcia’s guilt and


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sentenced him to eight years’ confinement.

       Garcia was originally assessed a fine of $5,000 on October 19, 2000, $4,000 of

which was probated. On December 6, 2001, Garcia’s original fine was modified, and he

was ordered to pay $5,000, $3,000 was probated.       On June 2, 2009, the court ordered

Garcia to pay restitution in the amount of $3,600 and $1,000 to the Supervision Officer of

Bee County, Texas.     On the fourth motion to revoke, the court did not impose an

additional fine.

                                II. STANDARD OF REVIEW

       We review a revocation of a probated sentence for an abuse of discretion.

Cardona v. State, 665 S.W.2d 492, 493 (Tex. Crim. App. 1984) (citing Caddell v. State,

605 S.W.2d 275, 277 (Tex. Crim. App. 1980)).      ―The test for abuse of discretion is not

whether, in the opinion of the reviewing court, the facts present an appropriate case for

the trial court's action.‖ Montgomery v. State, 810 S.W.2d 372, 379 (Tex. Crim. App.

1990). ―Rather, it is a question of whether the court acted without reference to any

guiding rules and principles.‖ Id. The general rule is that as long as a sentence is

within the proper range of punishment, it will not be disturbed on appeal.    Jackson v.

State, 680 S.W.2d 809, 814 (Tex. Crim. App. 1998).      Section 12.33 of the penal code

provides that the punishment range for a second-degree felony is imprisonment for a

term of not more than twenty years or less than two years and a fine not to exceed

$10,000.    See TEX. PENAL CODE ANN. § 12.33 (a), (b) (West 2003).

                                      III. ANALYSIS

A.   Revocation

       By his first issue, Garcia contends that the trial court abused its discretion by

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sentencing him to eight years in confinement, which he claims violates the objectives of

the system of prohibitions, penalties, and correctional measures in the Texas Penal

Code.    ―The general purpose of this penal code is to establish a system of prohibitions,

penalties, and correctional measures to deal with conduct that unjustifiably and

inexcusably causes or threatens harm to those individual or public interests for which

state protection is appropriate.‖    TEX. PENAL CODE ANN. § 1.02 (West 1994).          If the

State fails to meet its burden of proof that the appellant violated his probation, then the

trial court abuses its discretion in revoking community supervision.          See Rickels v.

State, 202 S.W.3d 759, 763 (Tex. Crim. App. 2006).

        Garcia allegedly violated his probation four times.         On the fourth motion to

revoke, Garcia voluntarily admitted that he was within one-thousand feet of a school

zone, which was a clear violation of the terms of his probation.           A plea of true is

sufficient to support the trial court’s order of revocation.   Cole v. State, 578 S.W.2d 127,

128 (Tex. Crim. App. 1979); Books v. State, 995 S.W.2d 762, 763 (Tex. App.—San

Antonio 1999, no pet.). In light of the foregoing, we thus conclude that the trial court did

not abuse its discretion. We overrule this issue.

B.   Assessment of Fine

        By his second issue, Garcia points out that the trial court erred when it assessed

the fine outside his presence.    A defendant’s sentence must be pronounced orally in his

presence.    Taylor v. State, 131 S.W.3d 497, 500 (Tex. Crim. App. 2004). Here, the

additional $1,000 fine assessed on June 2, 2009 was never orally pronounced; the judge

simply stated that there would be a ―fine.‖ ―When there is a conflict between the oral

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


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pronouncement controls.‖       Id.

       In this case, there was only a written judgment and not an oral sentence.       This

error, though, was not harmful.      Garcia signed a document stating that he understood

the terms and conditions of the plea agreement, and the June 2, 2009 revocation

document stated that there was an additional $1,000 fine.      In Coffey v. State, the Texas

Court of Criminal Appeals held that when a fine is assessed at the original plea

proceedings, then it was appropriately included in the final judgment for probation

revocation.   979 S.W.2d 326, 328–29 (Tex. Crim. App. 1998). In this case, the $1,000

fine was imposed during the original proceedings.          Thus, it was appropriate in the

revocation judgment.       Coffey also held that when a fine is imposed pursuant to the plea

agreement and is signed by the appellant, his attorney, the prosecutor, and the trial

judge, then such fine is appropriately included in the judgment revoking probation.      Id.

at 329.   Here, Garcia and the trial judge signed the plea agreement that included a

provision for the additional $1,000 fine, which substantially complies with Coffey.

Accordingly, we overrule Garcia’s second issue.

                                       IV. CONCLUSION

       Having overruled both issues, we affirm the trial court’s ruling.



                                                          ________________________
                                                          GINA M. BENAVIDES,
                                                          Justice

Do not publish.
TEX. R. APP. P.47.2 (b).

Delivered and filed the
30th day of June, 2011.


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