                         COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                              NO. 02-14-00055-CR


SCOTT HELM STRANGE                                               APPELLANT

                                        V.

THE STATE OF TEXAS                                                     STATE


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     FROM CRIMINAL DISTRICT COURT NO. 3 OF TARRANT COUNTY
                   TRIAL COURT NO. 1229506D

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                        MEMORANDUM OPINION1

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      Appellant Scott Helm Strange appeals the trial court’s judgment ordering

payment of $443 in reparations.      Because the State presented no evidence

supporting the reparations, we modify the judgment by deleting the reparations

and affirm it as modified. See Tex. R. App. P. 43.2(b).




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       See Tex. R. App. P. 47.4.
                           I. BACKGROUND FACTS

      On October 3, 2011, Appellant pleaded guilty to driving while intoxicated.

See Tex. Penal Code Ann. § 49.04 (West Supp. 2014). The trial court entered a

judgment of conviction, sentenced Appellant to seven years’ confinement with a

fine, suspended the sentence, and placed Appellant on four years’ community

supervision. See Tex. Code Crim. Proc. Ann. art. 42.12, § 3(a) (West Supp.

2014). Among his community-supervision conditions, Appellant was required to

pay $60 a month in supervision fees. On September 12, 2013, the State filed a

petition to revoke Appellant’s community supervision, alleging he violated the

conditions of his community supervision by (1) consuming alcohol, (2) failing to

successfully complete his alcohol-treatment program, and (3) violating his

curfew.   The trial court found the second and third allegations true, revoked

Appellant’s community supervision, ordered Appellant punished in accordance

with the prior judgment, and required him to pay reparations of $443. See id. art.

42.03, § 2(b) (West Supp. 2014).

      Appellant argues in his first point that the reparations portion of the

judgment was in error because it was not supported by the record. In his second

point, he asserts that the same provision was in error because there was no

evidence Appellant had the ability to pay the reparations.




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                               II. REPARATIONS

       The reparations included in the trial court’s judgment consisted of

“probation fees” and an amount “due to CSCD.” The State did not allege that

Appellant owed fees and did not present any evidence demonstrating that any

fees were owed. Appellant points to an itemized cost list that shows Appellant

did not owe any probation fees. The State concedes that reparations should be

deleted from the judgment.

      If a trial court revokes the suspension of the imposition of a sentence, it

“shall enter the restitution or reparation due and owing on the date of the

revocation.” Id.   When sentencing the defendant, the trial court further must

pronounce the sentence in the defendant’s presence. Id. art. 42.03, § 1(a) (West

Supp. 2014). The ensuing judgment is “the written declaration and embodiment

of that oral pronouncement.” Taylor v. State, 131 S.W.3d 497, 500 (Tex. Crim.

App. 2004). When the oral pronouncement of judgment and written judgment

conflict, the oral pronouncement controls. Id. at 502.

      But only punishments must be orally pronounced.       The trial court may

include other fees—such as reparations—in the judgment despite not

pronouncing them orally in court. Weir v. State, 278 S.W.3d 364, 367 (Tex. Crim.

App. 2009); see also Boyd v. State, No. 02-11-00035-CR, 2012 WL 1345751, at

*2 (Tex. App.—Fort Worth Apr. 19, 2012, no pet.) (mem. op., not designated for

publication) (holding unpaid “Supervision Fee” could be added to judgment);

Brown v. State, No. 2-08-063-CR, 2009 WL 1905231, at *2 (Tex. App.—Fort


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Worth July 2, 2009, no pet.) (mem. op., not designated for publication) (holding

reparations are not punishment that must be orally pronounced). But to include

such fees, the State must supply evidence that the defendant actually owes

them. Lewis v. State, 423 S.W.3d 451, 460–61 (Tex. App.—Fort Worth 2013, no

pet.).

         In Lewis, the trial court revoked the defendant’s community supervision,

sentenced him to ten years’ confinement, and ordered reparations. Id. at 453–

54. On appeal, the defendant argued that $320 of the reparation amount should

be deleted from the judgment. Id. at 460. The State argued only that $300

should be deleted because $20 was a statutorily-mandated Crime Stopper

Reward Fee. Id. But the State did not allege in its revocation petition or provide

proof that the defendant had not paid the crime-stopper fee. Id. Finally, the trial

court did not find that he had not paid the fee. Id. We deleted the crime-stopper

fee from the ordered reparations and affirmed the judgment as modified. Id. at

460–61.

         Here, the State similarly did not allege the nonpayment of the probation or

CSCD fees and did not offer any evidence that Appellant was in arrears.

Moreover, the record shows that Appellant did not owe probation fees. Because

the State did not allege that Appellant violated his community supervision by not

paying the fees or other amounts due, because the State did not prove that

Appellant had not paid as ordered, and because the trial court did not find that




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Appellant had not paid as ordered, we hold that the record does not support the

reparation amount contained in the judgment.

                                III. CONCLUSION

      We sustain Appellant’s first point and modify the judgment to delete the

reparation amount of $443. Because Appellant’s first point fully disposes of the

appeal, we do not address Appellant’s second point. See Tex. R. App. P. 47.1.

We affirm the trial court’s judgment as modified.



                                                    /s/ Lee Gabriel

                                                    LEE GABRIEL
                                                    JUSTICE

PANEL: LIVINGSTON, C.J.; MEIER and GABRIEL, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: August 7, 2014




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