                                 IN THE
                         TENTH COURT OF APPEALS

                                No. 10-13-00017-CR

SCOTTY LEE DYER,
                                                            Appellant
v.

THE STATE OF TEXAS,
                                                            Appellee



                          From the 220th District Court
                            Hamilton County, Texas
                            Trial Court No. CR07539


                          MEMORANDUM OPINION


      In one issue, appellant, Scotty Lee Dyer, argues that the trial court erred in

assessing restitution in the written judgment. We affirm.

                                     I.    BACKGROUND

      On March 26, 2009, appellant was charged by indictment with the state-jail

felony offense of theft of $1,500 or more, but less than $20,000. See TEX. PENAL CODE

ANN. § 31.03(a)-(b), (e)(4)(A) (West Supp. 2013). Appellant entered a guilty plea to the

charged offense and was subsequently placed on community supervision for a period
of five years with a $1,000 fine. The trial court also ordered that appellant pay $2,117.45

in restitution, among other things.

        On March 21, 2012, the State filed a “Motion to Proceed With an Adjudication of

Guilt,” alleging that appellant violated numerous conditions of his community

supervision. Among the violations alleged was that appellant committed another theft

offense on or about November 21, 2010. At the hearing on the State’s motion, appellant

pleaded “true” to all of the alleged violations. The trial court adjudicated appellant’s

guilt and sentenced him to two years’ incarceration in the State-Jail Division of the

Texas Department of Criminal Justice with a $1,000 fine. In his oral pronouncement of

appellant’s sentence, the trial judge stated the following:

        Mr. Dyer, the Court having found you guilty of the offense as alleged in
        the indictment in this cause it is the sentence of this Court and I hereby
        assess a fine of a thousand dollars, plus your court costs, all your financial
        obligations in probation matters are carried forward, be further sentenced to
        the State Jail facility for a period of 24 months.

(Emphasis added).

        Thereafter, the trial court certified appellant’s right to appeal in this matter.

Appellant filed a motion for new trial and a motion in arrest of judgment, both of which

were overruled by operation of law.         See TEX. R. APP. P. 21.8(a), (c).   This appeal

followed.

                                         II.    ANALYSIS

        In his sole issue on appeal, appellant complains that the trial court’s written

judgment varies from the oral pronouncement of his sentence with respect to



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restitution. Appellant relies heavily on the Fort Worth Court of Appeals’ decision in

Alexander v. State, 301 S.W.3d 361 (Tex. App.—Fort Worth 2009, no pet.).

        In Alexander, the defendant was initially placed on community supervision with

one of the conditions being that he pay restitution in the amount of $10,871.25. Id. at

362.   Alleging that the defendant had violated four conditions of his community

supervision, the State filed a motion to adjudicate the defendant’s guilt.         Id.    The

defendant pleaded “true” to the allegations, and the trial court subsequently found him

guilty and sentenced him to ten years’ confinement. Id. Nonetheless, the trial court’s

written judgment included an order that the defendant pay $10,311.25 in restitution,

though the trial court’s oral pronouncement did not.            Id.   The Alexander court

determined that the oral pronouncement of the defendant’s sentence varied from the

written judgment. Id. at 363-64. And because the trial court did not orally pronounce

that the defendant should pay $10,311.25 in restitution, that portion of the judgment

was deleted. Id. at 364. Appellant argues that a similar fact scenario occurred here. We

disagree.

        Here, the trial court orally pronounced appellant’s sentence to include “all your

financial obligations in probation matters are carried forward,” meaning that any

financial obligations corresponding with appellant’s community supervision are carried

forward and still owed. And as mentioned above, appellant was originally ordered to

pay $2,117.45 in restitution as a condition of his community supervision. Furthermore,

in its written judgment, the trial court ordered appellant to pay $1,767.45 in restitution

or, in other words, the balance of the original restitution that was still owed.

Dyer v. State                                                                            Page 3
        Based on the foregoing, we cannot say that the trial court’s oral pronouncement

of appellant’s sentence varied from the written judgment. See Taylor v. State, 131 S.W.3d

497, 500 (Tex. Crim. App. 2004) (stating that, when there is conflict between the oral

pronouncement of sentence and the written memorialization of that sentence, the oral

pronouncement controls); see also Ex parte Madding, 70 S.W.3d 131, 135 (Tex. Crim. App.

2002) (noting that the judgment is merely the written declaration and embodiment of

the oral pronouncement of sentence). Moreover, because the oral pronouncement and

the written judgment did not vary, we do not find the Alexander case to be persuasive in

this matter. Accordingly, we overrule appellant’s sole issue on appeal.

                                       III.   CONCLUSION

        We affirm the judgment of the trial court.




                                                 AL SCOGGINS
                                                 Justice


Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Affirmed
Opinion delivered and filed January 9, 2014
Do not publish
[CR25]




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