AFFIRMED as MODIFID and Opinion Filed January 28, 2020




                                                     S
                                       Court of Appeals
                                                          In The


                                Fifth District of Texas at Dallas
                                                 No. 05-19-00155-CR

                                    CURTIS DEAN JOHNSON, Appellant
                                                 V.
                                     THE STATE OF TEXAS, Appellee

                              On Appeal from the 59th Judicial District Court
                                         Grayson County, Texas
                                     Trial Court Cause No. 069028

                                      MEMORANDUM OPINION
                        Before Justices Osborne, Partida-Kipness, and Pedersen, III
                                        Opinion by Justice Osborne

          Appellant Curtis Dean Johnson was convicted on an “open” plea of guilty of possession of

methamphetamine in an amount greater than one gram but less than four grams. Appellant entered

pleas of true to two enhancement paragraphs. After a hearing on punishment, the trial court

sentenced appellant to fifty years’ imprisonment.

          In a single issue on appeal, appellant claims that the trial court’s judgment improperly

includes restitution because a restitution order was not part of the oral pronouncement of sentence.

In a letter filed with this Court, the State concurs with appellant’s allegation.1




   1
       The State declined to file a brief in this case.
        The written judgment entered by the trial court requires appellant to pay restitution in the

amount of $180.00. The trial court, however, in pronouncing sentence orally, made no mention of

restitution.

        A defendant’s sentence must be pronounced orally in his presence. TEX. CODE CRIM. PROC.

ANN. art. 42.03, § 1(a). The judgment, including the sentence assessed, is just the written

declaration and embodiment of that oral pronouncement. Taylor v. State, 131 S.W.3d 497, 500

(Tex. Crim. App. 2004); see also TEX. CODE CRIM. PROC. ANN. art. 42.01. A trial judge has neither

the statutory authority nor the discretion to orally pronounce one sentence in front of the defendant

but then enter a different written judgment outside the defendant’s presence. Burt v. State, 445

S.W.3d 752, 757 (Tex. Crim. App. 2014). When there is a conflict between the oral pronouncement

of sentence and the sentence in the written judgment, the oral pronouncement controls. Taylor,

131 S.W.3d at 500.

        Restitution is considered punishment. Ex parte Cavazos, 203 S.W.3d 333, 338 (Tex. Crim.

App. 2006); see also Weir v. State, 278 S.W.3d 364, 366 (Tex. Crim. App. 2009). Any restitution

amount must be orally pronounced. See Taylor, 131 S.W.3d at 502; Alexander v. State, 301 S.W.3d

361, 363 (Tex. App. — Fort Worth 2009, no pet.).

        We have the authority to modify an incorrect judgment when the evidence necessary to

correct that judgment appears in the record. TEX. R. APP. P. 43.2(b); Bigley v. State, 865 S.W.2d

26, 27–28 (Tex. Crim. App. 1993); Asberry v. State, 813 S.W.2d 526, 529–30 (Tex. App.—Dallas

1991, pet. ref’d).

        Because the $180.00 restitution amount included in the judgment did not comport with the

trial court’s oral pronouncement of sentencing, it was error to include the restitution amount in the

judgment.




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       We modify the trial court’s written judgment to delete the restitution amount and affirm

the judgment as modified.



                                                /Leslie Osborne/
                                                LESLIE OSBORNE
                                                JUSTICE


DO NOT PUBLISH
TEX. R. APP. P. 47.2(b)
190155F.U05




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                                         S
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                       JUDGMENT

 CURTIS DEAN JOHNSON, Appellant                      On Appeal from the 59th Judicial District
                                                     Court, Grayson County, Texas
 No. 05-19-00155-CR         V.                       Trial Court Cause No. 069028.
                                                     Opinion delivered by Justice Osborne.
 THE STATE OF TEXAS, Appellee                        Justices Partida-Kipness and Pedersen, III
                                                     participating.

        Based on the Court’s opinion of this date, the judgment of the trial court is MODIFIED
as follows:

       The amount of restitution is deleted.

as REFORMED, the judgment is AFFIRMED.


Judgment entered January 28, 2020.




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