      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-08-00501-CR



                                  Jaci Deanne Elam, Appellant

                                                 v.

                                  The State of Texas, Appellee


     FROM THE DISTRICT COURT OF BELTON COUNTY, 27TH JUDICIAL DISTRICT
           NO. 62848, HONORABLE FANCY H. JEZEK, JUDGE PRESIDING



                             MEMORANDUM OPINION


               Jaci Elam pleaded guilty to the crime of intoxication manslaughter. See Tex. Penal

Code Ann. § 49.08 (West Supp. 2009). After the district court pronounced its sentence, it issued a

written judgment containing additional items that were not specifically mentioned during the

pronouncement. In particular, the written judgment required Elam to pay court costs, attorney’s fees,

and restitution. On appeal, Elam contends that the inclusion of those three items in the judgment

was error and that the district court’s judgment should be modified accordingly. We will modify the

judgment to delete the portions requiring Elam to pay attorney’s fees and restitution.


                                         BACKGROUND

               As mentioned above, Elam pleaded guilty to the crime of intoxication manslaughter.

See id. After Elam entered her plea, the district court held a punishment hearing. At the end of the

hearing, the court orally pronounced the following sentence:
        [I]t is the sentence of this court, ma’am that you serve 11 years in the Institutional
        Division of the Texas Department of Criminal Justice.

        I will note that restitution in this case is in the amount of $5,418.50. While I cannot
        order it, I do want that noted.


                  The written judgment that was prepared afterwards also states that Elam was to serve

a sentence of eleven years. Further, the written judgment instructed that Elam was required to “PAY

COURT COSTS, ATTORNEY FEES, AND RESTITUTION AFTER RELEASE FROM

INCARCERATION” and specified the amount of court costs ($238) and restitution ($5,418.50) to

be paid. See Tex. Code Crim. Proc. Ann. art. 42.01, § 1 (West Supp. 2009) (listing items to be

included in judgment).

                  After the written judgment was issued, Elam appealed the judgment of the

district court.


                                             DISCUSSION

                  In one issue on appeal, Elam contends that the district court’s written judgment is

inconsistent with “the oral pronouncement of judgment” and should be modified accordingly.

Specifically, Elam argues that the “oral pronouncement of judgment controls over the written

recording” and that because the district court did not orally order Elam to pay “attorney’s fees, court

costs[,] or restitution,” the portion of the judgment requiring those payments “should be removed

and a corrected judgment should be ordered to be entered.” We will address attorney’s fees, court

costs, and restitution separately.

                  Generally speaking, a district court’s sentence is pronounced orally, and the judgment,

including the sentence, “is merely the written declaration and embodiment of that oral



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pronouncement.” Ex parte Madding, 70 S.W.3d 131, 135 (Tex. Crim. App. 2002); see Tex. Code

Crim. Proc. Ann. art. 42.01, § 1. This distinction stems from the idea “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.” Ex parte Madding, 70 S.W.3d at 135.

Accordingly, if the written judgment differs from the oral pronouncement of sentence, “the oral

pronouncement controls.” Id. Stated differently, a defendant has a legitimate due process

expectation that the sentence orally pronounced will be the same one he has to serve, and a court

violates a defendant’s due process rights if it chooses to enter a written judgment with a harsher

sentence than the one orally pronounced but does not provide the defendant with notice or an

opportunity to be heard. Id. at 136-37. For this reason, a trial court may not “orally pronounce one

sentence in front of the defendant, but enter a different sentence in his written judgment, outside the

defendant’s presence.” Id. at 136. However, the requirement that the “oral pronouncement match

the written judgment applies only to sentencing issues, such as the term of confinement assessed.”

Ex parte Huskins, 176 S.W.3d 818, 820 (Tex. Crim. App. 2005).


Court Costs

               The court of criminal appeals has held that “court costs are not punitive and,

therefore, [do] not have to be included in the oral pronouncement of sentence . . . as a precondition

to their inclusion in” a “written judgment.” Weir v. State, 278 S.W.3d 364, 367 (Tex. Crim. App.

2009); see Tex. Gov’t Code Ann. § 102.021 (West Supp. 2009) (explaining that person who is

convicted in criminal proceeding “shall” pay court costs). In light of that determination, we must

conclude that the inclusion of courts costs in the written judgment was not error.

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Attorney’s Fees

               As mentioned previously, the written judgment requires Elam to pay attorney’s fees

when she is released from incarceration. Under the code of criminal procedure, district courts have

the ability to require a defendant to pay the attorney’s fees for an appointed counsel “[i]f the court

determines that [the] defendant has financial resources that enable him to offset . . . the costs of the

legal services provided.” Tex. Code Crim. Proc. Ann. art. 26.05(g) (West Supp. 2009). Moreover,

this Court has previously determined that the imposition of “attorney’s fees are not punitive, are not

part of the sentence, and, therefore, need not be pronounced orally in order to be included in the

written judgment.” Cornelison v. State, No. 03-07-00664-CR, 2008 Tex. App. LEXIS 6222, at *7

(Tex. App.—Austin Aug. 14, 2008, no pet.) (mem. op.).

               However, in this case, Elam’s trial attorney was retained, not appointed. For that

reason, the State concedes that the inclusion of attorney’s fees in the written judgment was error and

that the judgment should be “modified to delete the order for the payment upon release from

incarceration of attorney’s fees.” In light of the preceding, we modify the written judgment to

remove the requirement that Elam pay attorney’s fees upon her release from incarceration. See

Ex parte Madding, 70 S.W.3d at 137 (modifying written judgment to comport with sentence orally

pronounced).


Restitution

               Although the district court mentioned restitution when pronouncing its judgment, the

court did not explicitly order Elam to pay restitution. In fact, the court explained that it was not

ordering restitution because it did not have the authority to impose a restitution requirement. Even

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if the court’s statement regarding its ability to impose restitution was inaccurate, see Tex. Code

Crim. Proc. Ann. art. 42.037 (West Supp. 2009) (authorizing district court to order convicted

individual to pay restitution), the fact remains that the court did not order Elam to pay restitution

during its pronouncement.

               This Court has previously held that restitution is punitive and “must be pronounced

orally in order to be included in the written judgment.” Weir v. State, 252 S.W.3d 85, 88 (Tex.

App.—Austin 2008), rev’d in part on other grounds, 278 S.W.3d 364; Sauceda v. State, No.

03-07-00268-CR, 2007 Tex. App. LEXIS 9722, at *3-6 (Tex. App.—Austin Dec. 12, 2007, no pet.)

(mem. op.); see also Ex parte Cavazos, 203 S.W.3d 333, 338 (Tex. Crim. App. 2006) (stating that

“restitution is punishment”). Because the district court failed to order restitution at the time it

pronounced the judgment, the inclusion of a restitution requirement in the written judgment was

error. Accordingly, we modify the judgment to delete the restitution requirement.1




       1
           In its brief, the State asserts that if we determine that the inclusion of restitution was
erroneous, this Court should only delete the portion of the judgment actually requiring payment but
should leave unaltered the amount of restitution listed and the names of the individuals to be paid.
Essentially, the State argues that because a parole panel is authorized to order the payment of
restitution as a condition of community supervision, see Tex. Code Crim. Proc. Ann. art. 42.037(h)
(West Supp. 2009), the panel could impose the restitution listed in the written judgment.

         However, the provision of the code of criminal procedure relied on by the State only allows
a panel to impose restitution that was properly ordered by a district court and imposed on a
defendant. Id. Because we have concluded that the district court did not properly impose a
restitution requirement on Elam, a parole panel would not have the authority under that provision
to impose a restitution requirement later. For that reason, we conclude that the amount of restitution
and the names of potential recipients should also be deleted from the district court’s written
judgment.

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                                        CONCLUSION

               Having concluded that it was error to include in the judgment the requirements that

Elam pay attorney’s fees and restitution, we modify the judgment to remove those requirements and,

as modified, affirm the remainder of the judgment.




                                             David Puryear, Justice

Before Chief Justice Jones, Justices Puryear and Pemberton

Modified and, as Modified, Affirmed

Filed: February 26, 2010

Do Not Publish




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