                                        In The

                                  Court of Appeals
                      Ninth District of Texas at Beaumont
                                ___________________
                                 NO. 09-12-00230-CR
                                ___________________

      KEVIN EARL KIRKLAND A/K/A KEVIN KIRKLIN, Appellant

                                          V.

                         THE STATE OF TEXAS, Appellee

__________________________________________________________________

                On Appeal from the 252nd District Court
                       Jefferson County, Texas
                       Trial Cause No. 11-12197
__________________________________________________________________

                            MEMORANDUM OPINION

          In carrying out a plea-bargain agreement, Kevin Earl Kirkland 1 pled guilty

to third-degree felony family assault. See Tex. Penal Code Ann. § 22.01(b)(2)(B)

(West 2011). Under the terms of the plea-bargain agreement, the trial court


      1
       Kevin Earl Kirkland is also referred to in the clerk’s record as Kevin
Kirklin, and the record reflects that the defendant signs his name as Kevin Kirklin.
For purposes of this appeal, we will refer to the defendant as Kirkland, as shown
on the indictment and final judgment.

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deferred the adjudication of Kirkland’s guilt and placed Kirkland on community

supervision for a period of three years. Additionally, the deferred adjudication

order includes a fine of $500.

      Subsequently, the State filed a motion to revoke the trial court’s community

supervision order. After conducting a hearing, the trial court found Kirkland guilty

of assaulting a family member and sentenced Kirkland to ten years’ imprisonment;

however, during the revocation and sentencing hearing, the trial court did not

pronounce that it also intended to impose a fine. Nevertheless, the written

judgment includes a fine in the amount of $500.

      The three issues Kirkland raises in his appeal argue that the trial court should

not have included a $500 fine in the final judgment because no fine was

pronounced during Kirkland’s revocation and sentencing hearing. The State

concedes error.

      Because no fine was pronounced at the revocation and sentencing hearing,

the trial court should not have included the fine at issue in the final judgment.

Coffey v. State, 979 S.W.2d 326, 328 (Tex. Crim. App. 1998). (“[W]hen there is a

variation between the oral pronouncement of sentence and the written

memorialization of the sentence, the oral pronouncement controls.”). The trial

court’s failure to orally pronounce a fine during the revocation and sentencing

                                          2
hearing creates a conflict between the oral pronouncement of Kirkland’s sentence

and the written judgment; in cases of deferred adjudication, the oral

pronouncement controls. See Taylor v. State, 131 S.W.3d 497, 502 (Tex. Crim.

App. 2004).

      We sustain Kirkland’s first issue; we modify the trial court’s judgment,

reducing “Administrative Fees” from $1,582.00 to $1,082.00. As modified, the

judgment is affirmed.

      AFFIRMED AS MODIFIED.




                                           ___________________________
                                                  HOLLIS HORTON
                                                       Justice


Submitted on December 27, 2012
Opinion Delivered February 13, 2013
Do Not Publish

Before McKeithen, C.J., Kreger and Horton, JJ.




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