                        COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH


                              NO. 2-08-063-CR


FREDDIE GENE BROWN                                              APPELLANT

                                       V.

THE STATE OF TEXAS                                                    STATE

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          FROM THE 297TH DISTRICT COURT OF TARRANT COUNTY

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                        MEMORANDUM OPINION 1

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     Appellant Freddie Gene Brown appeals his conviction for aggravated

sexual assault of a child under age fourteen. In a single issue, Brown argues

that because the trial court did not pronounce a restitution order and a

reparation order when it orally pronounced his sentence, the trial court’s

judgment should be reformed to delete the requirements that he pay $1,645.00




     1
         … See Tex. R. App. P. 47.4.
in restitution and $4,017.50 in reparations. 2 We will modify the judgment to

delete the restitution order and affirm the judgment as modified.

      In June 2002, Brown pleaded guilty to the offense of aggravated sexual

assault of a child under age fourteen, and the trial court sentenced him to ten

years’ deferred adjudication community supervision. The State filed its third

amended petition to proceed to adjudication in January 2008, alleging that

Brown had violated several terms and conditions of his community supervision.

Brown pleaded not true to the State’s allegations. After a hearing, the trial

court found that Brown had violated the terms and conditions of his community

supervision as set out in the State’s petition, found him guilty of aggravated

sexual assault of a child under age fourteen, and sentenced him to twenty-five

years’ confinement. When the trial court orally pronounced Brown’s sentence,

it did not order him to pay any amounts of money as restitution or reparations.

The judgment requires Brown to pay “Restitution” in the amount of $1,645.00

and “Reparations” in the amount of $4,017.50.

      Brown’s court-appointed appellate counsel filed a brief containing a single

“Issue Presented” (that the restitution and reparation orders should be deleted).3



      2
       … The State agrees that the judgment should be modified to delete the
requirement that Brown pay restitution.
      3
          … Brown prays for the same relief.

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The brief also states that “[i]n all other respects, this brief is submitted for the

purpose of compliance with the requirements of Anders v. California,” and

counsel filed a motion to withdraw. We treated the brief as a traditional brief

on the merits. We deny counsel’s motion to withdraw.

      Brown argues that the restitution and reparation orders in the written

judgment are part of his sentence and, therefore, must have been included in

the trial court’s oral pronouncement of sentence. Aggravated sexual assault of

a child under age fourteen is a first-degree felony.       Tex. Penal Code Ann.

§ 22.021(e) (Vernon Supp. 2008). An individual adjudged guilty of a first-

degree felony shall be punished by imprisonment in the institutional division for

life or for any term of not more than ninety-nine years or less than five years

and, in addition to imprisonment, may be punished by a fine not to exceed

$10,000. Id. § 12.32 (Vernon 2003).4

      A trial court’s pronouncement of sentence is oral, while the judgment,

including the sentence assessed, is merely the written declaration and

embodiment of that oral pronouncement.         Tex. Code Crim. Proc. Ann. art.

42.01, § 1 (Vernon 2006); see Taylor v. State, 131 S.W.3d 497, 500 (Tex.



      4
      … Section 22.021 provides that the minimum term of imprisonment is
twenty-five years if the victim is younger than six years of age at the time the
offense is committed. Tex. Penal Code Ann. § 22.021(f). The complainant
here was three years old at the time of the offense.

                                         3
Crim. App. 2004) (stating that a defendant’s sentence must be pronounced

orally in his presence); Ex parte Madding, 70 S.W.3d 131, 135 (Tex. Crim.

App. 2002).     When the oral pronouncement of sentence and the written

judgment vary, the oral pronouncement controls. Taylor, 131 S.W.3d at 500;

Madding, 70 S.W.3d at 135 (“[I]t is the pronouncement of sentence that is the

appealable event, and the written sentence or order simply memorializes it and

should comport therewith.” (quoting Coffey v. State, 979 S.W.2d 326, 328

(Tex. Crim. App. 1998))). The rationale for this rule is that “the imposition of

sentence is the crucial moment when all of the parties are physically present at

the sentencing hearing and able to hear and respond to the imposition of

sentence. Once he leaves the courtroom, the defendant begins serving the

sentence imposed.”     Madding, 70 S.W.3d at 135.        It is a violation of due

process to orally pronounce a sentence and then later, without notice or

hearing, enter a written judgment imposing a harsher sentence. Id. at 136–37.

      Regarding restitution, article 42.037(e) of the code of criminal procedure

states in part that “[t]he imposition of the order [of restitution] may not unduly

complicate or prolong the sentencing process.” Tex. Code Crim. Proc. Ann. art.

42.037(e) (Vernon Supp. 2008).        In Bailey v. State, the court of criminal

appeals stated of this part of article 42.037(e), “This statement, essentially

including restitution in the ‘sentencing process,’ implies that restitution is


                                        4
imposed as part of the original sentence, and that the sentence is not complete

until restitution is imposed.” 160 S.W.3d 11, 15 (Tex. Crim. App. 2004).5 In

Ex parte Cavazos, the court of criminal appeals stated that it has held that

“restitution is punishment.” 203 S.W.3d 333, 338 (Tex. Crim. App. 2006).

In Weir v. State, the court of criminal appeals considered whether costs must

be included in the oral pronouncement of sentence and noted that “the

Legislature and this Court have treated court costs differently from restitution,

which is also punitive.” 278 S.W.3d 364, 366 (Tex. Crim. App. 2009). In

Sauceda v. State, the Third Court of Appeals considered whether a restitution

order is part of the sentence and reasoned in part that “[b]ecause the sentence

is that part of the judgment that orders that the punishment be carried into

execution, it follows that restitution, as punishment, is part of the sentence.”

No. 03-07-00268-CR, 2007 WL 4354455, at *2 (Tex. App.—Austin Dec. 12,

2007, no pet.) (mem. op., not designated for publication); see also Tex. Code

Crim. Proc. Ann. art. 42.02 (Vernon 2006) (stating that “[t]he sentence is that

part of the judgment, or order revoking a suspension of the imposition of a

sentence, that orders that the punishment be carried into execution in the



      5
       … In a concurring opinion, Judge Cochran referred to a restitution order
as “an order that is pronounced orally in open court as a part of the sentencing
process.” Bailey, 160 S.W.3d at 18 (Cochran, J., concurring) (emphasis
added).

                                       5
manner prescribed by law”).      In light of the foregoing, we hold that the

$1,645.00 the trial court ordered Brown to pay as restitution is punishment and

part of his sentence and, therefore, must have been included in the trial court’s

oral pronouncement of sentence to be properly included in the written

judgment. We sustain this part of Brown’s issue.

      Regarding reparations, included in the clerk’s record is a “Revocation

Restitution/Reparation Balance Sheet – Art. 42.03 SEC. 2, b C.C.P.” Under the

heading, “Administrative Financial Obligations,” the document indicates that

Brown owes $404.75 for “Attorney Fees,” $97.75 for “Lab,” $2,430.00 for

“Probation Fees,” $540.00 for “Psychological Fees,” and $545.00 for “Spec

Fee for Sex Offenders,” for a total of $4,017.50 in “Reparations Owed.” These

“Reparations Owed” are fees owed by Brown as part of his community

supervision.   Each of the fees is authorized by statute,6 and article 42.03,


      6
        … The code of criminal procedure includes as conditions of community
supervision reimbursement to the county for compensation paid to an appointed
defense counsel and reimbursement for the analysis, storage, or disposal of raw
materials, controlled substances, or other materials seized in connection with
the offense. Tex. Code Crim. Proc. Ann. art. 42.12, § 11(a)(11), (19). The
code of criminal procedure allows for a judge granting community supervision
to fix a fee of not less than $25 and not more than $60 per month to be paid
by the defendant during the period of community supervision. Id. art. 42.12,
§ 19(a). And under circumstances similar to this case, the code of criminal
procedure allows a trial court to require as a condition of community
supervision that the defendant attend psychological counseling sessions for sex
offenders with an individual or organization that provides sex offender
treatment or counseling. Id. art. 42.12, § 13B(a)(2).

                                       6
section 2(b) states that “[i]n all revocations of a suspension of the imposition

of a sentence the judge shall enter the restitution or reparation due and owing

on the date of the revocation,” which is what happened in this case. Tex. Code

Crim. Proc. Ann. art. 42.03, § 2(b) (Vernon Supp. 2008). We hold that the

reparations, or fees, owed by Brown are not punishment and part of his

sentence and, therefore, did not have to be included in the trial court’s oral

pronouncement of sentence to be properly included in the written judgment.

See Revia v. State, No. 09-07-00068-CR, 2007 WL 2446099, at *1–2 (Tex.

App.—Beaumont Aug. 29, 2007, no pet.) (mem. op., not designated for

publication) (holding that costs and fees did not have to be orally pronounced

because they were not part of the punishment). We overrule the remainder of

Brown’s issue.

      We modify the part of the judgment adjudicating Brown’s guilt to delete

the requirement that Brown pay restitution in the amount of $1,645.00. As

modified, we affirm the trial court’s judgment. See Tex. R. App. P. 43.2(b).




                                           PER CURIAM

PANEL: MEIER, LIVINGSTON, and DAUPHINOT, JJ.

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

DELIVERED: July 2, 2009


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