                           COURT OF APPEALS
                            SECOND DISTRICT OF TEXAS
                                 FORT WORTH

                                NO. 02-15-00370-CR


ANDRE KIMBLE                                                       APPELLANT

                                         V.

THE STATE OF TEXAS                                                      STATE


                                      ----------

     FROM CRIMINAL DISTRICT COURT NO. 3 OF TARRANT COUNTY
                   TRIAL COURT NO. 1396543D

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                           MEMORANDUM OPINION1

                                      ----------

      A jury convicted Appellant Andre Kimble of felony assault of a family or

household member and assessed his punishment at fifteen years’ confinement

and a $4,000 fine. The trial court read the punishment verdict aloud, including

the period of confinement and fine, polled the jury, “receive[d] the verdict as

unanimous[,] and order[ed] it filed amongst the papers in this cause.” The trial


      1
          See Tex. R. App. P. 47.4.
court then orally pronounced the sentence but omitted any mention of a fine.

The trial court included both the confinement period and the fine in the written

judgment. In his sole issue, Appellant contends that because the trial court did

not pronounce the fine orally, the fine must therefore be deleted from the written

judgment.      Because the jury imposed the fine, the trial court accepted their

verdict as unanimous and ordered it filed in the trial court record, and the written

judgment corresponds with both the written jury verdict and the jury verdict

announced in court, received by the trial court, and ordered filed in the trial court

record, we disagree.

      The Texas Court of Criminal Appeals has provided the general rule

regarding conflicts between written judgments and oral pronouncements of

sentence:

            A defendant’s sentence must be pronounced orally in his
      presence. The judgment, including the sentence assessed, is just
      the written declaration and embodiment of that oral pronouncement.
      When there is a conflict between the oral pronouncement of
      sentence and the sentence in the written judgment, the oral
      pronouncement controls.2

As part of a defendant’s punishment and sentence,3 a fine must be orally

pronounced in the defendant’s presence.4


      2
       Taylor v. State, 131 S.W.3d 497, 500 (Tex. Crim. App. 2004) (footnotes
omitted); see also Coffey v. State, 979 S.W.2d 326, 328 (Tex. Crim. App. 1998).
      3
          See Gipson v. State, 428 S.W.3d 107, 109 (Tex. Crim. App. 2014).
      4
        Taylor, 131 S.W.3d at 500; see Tex. Code Crim. Proc. Ann. art. 42.03
§ 1(a) (West Supp. 2015).


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      But if the oral pronouncement of sentence is merely ambiguous, as

opposed to explicitly conflicting with the written judgment, “the jury’s punishment

verdict, the court’s pronouncement, and the written judgment should all be read

together in an effort to resolve the ambiguity.”5 This court-created exception

harmonizes the court-created general construct elevating oral pronouncements

with the otherwise conflicting protective ladder of common law, statutes, and

constitutional provisions placing valid jury verdicts on punishment beyond a trial

judge’s reach.

      Article 37.01 of the code of criminal procedure provides that a “verdict” is

“a written declaration by a jury of its decision of the issue submitted to it.”6 Article

37.04 provides that an agreed verdict “shall be read aloud by the judge, . . . [and

i]f in proper form and no juror dissents therefrom, and neither party requests a

poll of the jury, the verdict shall be entered upon the minutes of the court.”7

Article 37.05 clarifies that when all polled jurors confirm that it is in fact their

verdict, “the verdict shall be entered upon the minutes.”8 Article 37.06 requires

that a defendant in a felony case “be present when the verdict is read unless his

      5
        Hernandez v. State, No. 02-12-00392-CR, 2014 WL 1510093, at *2–3
(Tex. App.—Fort Worth Apr. 17, 2014, no pet.) (mem. op., not designated for
publication); Aguilar v. State, 202 S.W.3d 840, 843 (Tex. App.—Waco 2006, pet.
ref’d).
      6
          Tex. Code Crim. Proc. Ann. art. 37.01 (West 2006).
      7
          Id. art. 37.04.
      8
          Id. art. 37.05.


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absence is wilful or voluntary.”9 Article 42.01 provides in relevant part that “[t]he

sentence served shall be based on the information contained in the judgment”10

and that when the jury assessed punishment, the judgment shall provide “that the

defendant be punished in accordance with the jury’s verdict.”11

      More than thirty years ago, the Texas Court of Criminal Appeals discussed

our constitutional right to trial by jury and the trial court’s powerlessness to

change valid jury verdicts on punishment:

            The guarantee of a right to trial by jury in the Sixth
      Amendment, United States Constitution, is made applicable to the
      States by the Fourteenth Amendment. Article I, § 10 of the Texas
      Constitution provides that an accused in a criminal prosecution shall
      have a speedy public trial by an impartial jury. Article I, § 15 of the
      said State Constitution provides that the right of trial by jury shall
      remain inviolate. When the jury is to assess punishment . . . , the
      jury must assess in their verdict the punishment intended to be
      imposed where it is not otherwise fixed by law. Under these
      circumstances assessment of punishment is exclusively within the
      province of the jury.

            It has been fundamental that a trial judge does not have the
      authority to receive a jury’s verdict and then refuse to abide by it, nor
      change the verdict in any material part, nor give effect to part of the
      verdict and ignore some other part and enter another and different
      judgment from that called for by the jury’s verdict.12




      9
          Id. art. 37.06.
      10
           Id. art. 42.01, § 1 (West Supp. 2015).
      11
           Id. art. 42.01, § 1(8).
      12
         Ex parte Johnson, 697 S.W.2d 605, 612 n.3 (Tex. Crim. App. 1985)
(citations omitted).

                                           4
      “Courts have no power to change a jury verdict unless it is with the jury’s

consent and before they have dispersed.”13 “If a jury assesses a punishment

authorized by the law, the trial court has no power to change that punishment

verdict and has very little authority to do anything other than to impose that

sentence.”14

      It is true that article 42.03 of the code of criminal procedure provides that

the “sentence shall be pronounced in the defendant’s presence,”15 but with a

bench trial, the trial judge’s oral statements on “the record [are] the only

comparable source that may be consulted to learn the decision of the fact

finder.”16 On the other hand, when the jury determines punishment, “the written

verdict provides the basis for reforming an erroneous recitation in judgment and

sentence.”17

      In this case, the trial court’s oral pronouncement is ambiguous because it

does not mention the $4,000 fine that the trial court had just accepted and

ordered recorded as part of the jury verdict; the oral pronouncement does not




      13
           Ex parte McIver, 586 S.W.2d 851, 854 (Tex. Crim. App. [Panel Op.]
1979).
      14
           State v. Dudley, 223 S.W.3d 717, 721 (Tex. App.—Tyler 2007, no pet.).
      15
           Tex. Code Crim. Proc. Ann. art. 42.03, § 1(a) (West Supp. 2015).
      16
           Milczanowski v. State, 645 S.W.2d 445, 447 (Tex. Crim. App. 1983).
      17
           Id.


                                          5
impose the same fine, a “zero” fine, or a greater or lesser fine.18 But considering

together the facts that before the trial court formally pronounced sentence, the

trial court

               read aloud the jury’s verdict assessing punishment at fifteen years’
                confinement and a $4,000 fine,

               polled the jury,

               received the unanimous verdict, and

               ordered it filed in the trial court record,

along with the fact that the verdict read and accepted by the trial court in the

reporter’s record matches the written jury verdict as well as the trial court’s

written judgment found in the clerk’s record, any potential ambiguity is resolved in

favor of the jury verdict.19

       We overrule Appellant’s sole issue and affirm the trial court’s written

judgment.


                                                          /s/ Lee Ann Dauphinot
                                                          LEE ANN DAUPHINOT
                                                          JUSTICE

PANEL: LIVINGSTON, C.J.; DAUPHINOT and GARDNER, JJ.

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

DELIVERED: May 12, 2016


       18
            See Hernandez, 2014 WL 1510093, at *3.
       19
            See Taylor, 131 S.W.3d at 500; see also Aguilar, 202 S.W.3d at 843.


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