                                       In The

                                Court of Appeals
                    Ninth District of Texas at Beaumont
                              ____________________

                               NO. 09-13-00200-CR
                               NO. 09-13-00201-CR
                              ____________________

                JONATHAN JAMES WILTURNER, Appellant

                                         V.

                  THE STATE OF TEXAS, Appellee
_________________________________________________________________ _

                On Appeal from the 252nd District Court
                        Jefferson County, Texas
                  Trial Cause Nos. 10-10109, 10-10111
_________________________________________________________________ _

                          MEMORANDUM OPINION

      Appellant Jonathan James Wilturner appeals from the revocation of his

deferred adjudication community supervision and imposition of sentence. In each

case, Wilturner raises three issues challenging the trial court’s imposition of a $750

fine. We affirm the trial court’s judgments as modified.

      Pursuant to plea bargain agreements, Wilturner pleaded guilty to two

charges of aggravated robbery. In both cases, the trial court found the evidence


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sufficient to find Wilturner guilty, but deferred further proceedings, placed

Wilturner on community supervision for seven years, and assessed a fine of $750.

The State subsequently filed a motion to revoke Wilturner’s unadjudicated

community supervision in each case. Wilturner pleaded “true” to one violation of

the conditions of his community supervision in both cases. The trial court

conducted an evidentiary hearing with respect to the violations to which Wilturner

pleaded “not true” in each case. In both cases, the trial court found that Wilturner

violated the conditions of his community supervision, found Wilturner guilty of

aggravated robbery, and assessed punishment at twenty-five years of confinement.

      Although the first page each of the trial court’s judgments does not list a

fine, the second page of both judgments states that the trial court imposed a fine of

$750 upon ordering Wilturner placed on community supervision and then “Orders

Defendant to pay all fines, court costs, and restitution as indicated above.” As

mentioned above, Wilturner raises three appellate issues related to the imposition

in the written judgment of a fine that was not orally pronounced at sentencing. The

State confesses error.

      When pronouncing sentence in the cases, the trial court stated as follows:

             Cause No. 10109 I find the evidence to be sufficient to find
      Counts 1 and 6 to be true. They are true. I revoke your unadjudicated
      probation. I now find you guilty of Aggravated Robbery. You are
      guilty. I assess your punishment at 25 years’ confinement in the
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      Institutional Division. You will get credit for any time that you are
      entitled to by law.

             ...

             In Cause No. 10111 I find the evidence to be sufficient to find
      Counts 1 and 6 to be true. They are true. I revoke your unadjudicated
      probation. I now find you guilty of Aggravated Robbery. You are
      guilty. I assess your punishment at 25 years’ confinement in the
      Institutional Division. You will get credit for any time that you are
      legally entitled to.

The trial court did not include a fine in its oral pronouncement in either case.

      “[S]entence shall be pronounced in the defendant’s presence.” Tex. Code

Crim. Proc. Ann. art. 42.03, § 1(a) (West Supp. 2012).1 The judgment, including

the sentence assessed, is merely the written declaration and embodiment of the trial

court’s oral pronouncement. Taylor v. State, 131 S.W.3d 497, 500 (Tex. Crim.

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

differ, the oral pronouncement controls. Id. When the trial court revokes an order

for deferred adjudication community supervision, it cannot include the fine that it

imposed in the original plea proceeding unless it orally pronounces the fine at the

adjudication hearing. Id. at 502.

      As previously stated, the trial court did not include a fine in its oral

pronouncement in either case. We sustain Wilturner’s issues in both cases.
      1
         Because the amendments to article 42.03 are not material to this case, we
cite to the current version.
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Therefore, we modify the judgments to remove the $750 fine reflected on page

two, and we substitute “$0” in its place. As modified, we affirm the trial court’s

judgments.

      AFFIRMED AS MODIFIED.




                                            ______________________________
                                                   STEVE McKEITHEN
                                                      Chief Justice


Submitted on June 21, 2013
Opinion Delivered July 10, 2013
Do Not Publish

Before McKeithen, C.J., Kreger and Horton, JJ.




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