AFFIRM as MODIFIED; and Opinion Filed December 31, 2014.




                                                       S
                                        Court of Appeals
                                                             In The


                                 Fifth District of Texas at Dallas
                                                   No. 05-14-00230-CR

                                    RUSSELL R. WHITEHEAD, Appellant
                                                  V.
                                     THE STATE OF TEXAS, Appellee

                              On Appeal from the County Court At Law No. 1
                                         Kaufman County, Texas
                                    Trial Court Cause No. 31618CC

                                       MEMORANDUM OPINION
                  Before Justices O’Neill, Fillmore, and Chief Justice Thomas, Retired 1
                                      Opinion by Justice O’Neill
          Appellant Russell Whitehead was charged with aggravated assault–family violence, with

serious bodily injury and use of a deadly weapon. A jury convicted appellant, and appellant’s

punishment was assessed by the trial court at 25 years’ confinement in the Institutional Division

of the Texas Department of Criminal Justice. In three issues, appellant contends the trial court

erred by admitting certain exhibits into evidence at trial, and by failing to orally pronounce the

sentence of restitution. We sustain appellant’s third issue, modify the trial court’s judgment, and

affirm the judgment as modified. Because all dispositive issues are settled in law, we issue this

memorandum opinion. TEX. RS. APP. P. 47.2(a), 47.4.




     1
       The Honorable Linda Thomas, Chief Justice of the Court of Appeals for the Fifth District of Texas—Dallas, Retired, sitting by
assignment.
                                          BACKGROUND

       The charges against appellant arose from an assault on his wife Debra in 2012 in which

she suffered head injuries. Appellant hit his wife so hard that she lost consciousness. She had

two black eyes, a knot on her head, bruises on her throat, and other bruises on her body. She

stayed home from work for several days, and then returned to work but tried to avoid seeing any

co-workers. Approximately a week after the attack, Debra’s head was hurting so badly that she

went to her boss, Ellie Huff, who was a registered nurse, to ask for help, although she did not tell

Huff the cause of her injuries. Huff assisted Debra in getting a CT scan and going to the

emergency room of the hospital where they worked. Debra was later admitted to the hospital

and underwent surgery to remove subdural hematomas (blood clots) on her brain.                  Her

neurosurgeon testified that her injuries were life-threatening; that she would have died without

the surgery; and that there were permanent effects from the injuries such as difficulty

concentrating. Appellant was subsequently arrested and charged with assault.

       All of the issues in this appeal arise from the punishment phase of the trial. In the

punishment phase, Debra testified that appellant assaulted her for the first time in 1998, hitting

her so hard in the back of the head that he broke the barrette she was wearing. He then hit her in

the face, causing a gash in her nose. In 2001, appellant grabbed her arm and threw her down,

causing a spiral fracture in her arm. In 2002, an attack by appellant caused bruising on Debra’s

face and arm. Debra testified that she was in a relationship and living with appellant at the time

of these assaults, and married appellant in 2002 because she loved him and hoped he would

change. After the marriage, other assaults occurred. Debra testified that “[w]e would get into a

fight, he would choke me, he would kick me out. And, he would beg me to come home and I

would come home. He would be good for a while and then it would happen again.”



                                                –2–
       Debra’s son testified that he observed the gash in his mother’s nose after the 1998

incident. Debra’s daughter testified to an incident in 2006 in which appellant called her and

“told me I needed to come get my mother before he killed her.” She also testified that she came

to the hospital after the 2012 assault and observed her mother’s injuries.

       During the punishment phase of the trial, State’s Exhibit 9 was admitted into evidence.

This exhibit consisted of Debra’s medical records from the years 2001 and 2002 concerning

incidents of alleged domestic violence. State’s Exhibits 30, 31, and 32 were also admitted into

evidence during the punishment phase of the trial. These exhibits consisted of “computer

records of Appellant’s prior criminal history.”

       The trial court’s written judgment included an order for restitution in the amount of

$51,208.00. During the punishment phase of the trial, the State offered its Exhibit 29, Debra’s

victim impact statement. State’s Exhibit 29 was admitted with a stipulation by the defense that it

contained a summary of the medical costs incurred by the victim. On State’s Exhibit 29, under

“financial loss” was listed $45,570 in hospital expenses and $5,638 in loss of income from work.

The sum of these amounts is the amount of restitution ordered in the trial court’s judgment.

Restitution, however, was not included in the trial court’s oral pronouncement of appellant’s

sentence, and was not mentioned at all in the punishment phase of the trial.

                                              ISSUES

       In his first issue, appellant contends he was denied his constitutional right of

confrontation regarding State’s Exhibit 9 because the State failed to lay the proper predicate for

admission of medical records containing hearsay. In his second issue, appellant asserts that the

trial court erred by admitting computer records of his prior criminal history when the State failed

to show that he was the person convicted of the prior offenses. In his third issue, appellant




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contends the trial court’s judgment should be reformed to delete $51,208.00 in restitution

because it was not included in the trial court’s oral pronouncement of his sentence.

                                           DISCUSSION

       A. Admission of Exhibit 9

       State’s Exhibit 9 was introduced at the punishment phase of the trial before the court

without a jury. Exhibit 9 contained medical records from incidents of domestic violence in 2001

and 2002. Appellant contends that Exhibit 9 was offered and objected to but not formally

admitted into evidence. Appellant argues Exhibit 9 was inadmissible because it denied him the

constitutional right to confront the witnesses testifying against him. U.S. CONST. amend. VI.

Citing De La Paz v. State, 273 S.W.3d 671, 680 (Tex. Crim. App. 2008), appellant contends the

admission of Exhibit 9 was harmful error, and that therefore his sentence must be reversed. See

also Crawford v. Washington, 541 U.S. 36, 68 (2003) (testimonial out-of-court statements barred

under Confrontation Clause unless witnesses unavailable and defendant had prior opportunity for

cross-examination, regardless of whether statements deemed reliable by court).

       The record reflects that the trial court did admit Exhibit 9, “subject to any objection” by

the defense. The parties conferred with the court regarding the contents of the CD containing

Exhibit 9, and appellant’s counsel agreed that the State had “satisfied the requirement on the

business records affidavit.” See TEX. R. EVID. 902(10). But appellant’s counsel stated, “[w]e

would object to any contents that are hearsay under the 6th Amendment.” The court overruled

the objection, stating:

               I will overrule that objection. As the fact finder, the Court is aware
               and can exclude any [in]admissible hearsay testimony or evidence
               that’s contained in that exhibit and will only consider what is
               proper and relevant to this particular case. So, with that stipulation
               that objection is overruled.




                                                –4–
             The State argues that (1) the only specific objection presented to and ruled on by the trial

court was hearsay; (2) the trial court ruled that it would not consider any inadmissible hearsay in

Exhibit 9; (3) appellant does not cite any portion of the record showing that the trial court did

consider any inadmissible hearsay from Exhibit 9, and the record reflects no such consideration;

(4) in any event, the specific contents of Exhibit 9 complained of in appellant’s brief 2 are

statements made to medical personnel by appellant’s wife, the victim of the offense, who

appeared and was cross-examined at both phases of the trial. Appellant’s wife testified to the

specific incidents appellant identifies in his brief as the subject of his complaint on appeal, and

she was available for cross-examination by appellant’s counsel.

             We conclude the trial court did not err by admitting Exhibit 9 for the reasons presented

by the State. In addition, any error was harmless beyond a reasonable doubt under the standards

of Scott v. State, 227 S.W.3d 670, 690 (Tex. Crim. App. 2007). 3 The assaults reflected in the

portions of Exhibit 9 that are the subject of appellant’s complaint were evidenced by the

testimony of appellant’s wife at trial. Other witnesses corroborated her testimony of previous

domestic violence by appellant. These witnesses were also available for cross-examination at

trial. Considering the record as a whole, we conclude that any error in admitting Exhibit 9 was

harmless beyond a reasonable doubt. Id. We overrule appellant’s first issue.




     2
         In his brief, appellant specifically complains of the following:
                        State’s Exhibit 9, pages 645-668 addresses an August 7, 2002, concussion, hematoma, and “coon-
                        eyes.” On page 648, it was specifically noted that Mrs. Whitehead had been involved in domestic
                        violence and identified Russell Whitehead as the cause of the injuries. State’s Exhibit 9, pages 682-
                        700 consists of medical records pertaining to Mrs. Whitehead’s broke arm. It was noted that Mrs.
                        Whitehead became teary when she was questioned about domestic violence.

Appellant also argues that “[t]he State emphasized a pattern of family violence in its closing.”
     3
       In determining whether a Confrontation Clause error may be declared harmless beyond a reasonable doubt, we consider: (1) how
important the out-of-court statement was to the State’s case; (2) whether the out-of-court statement was cumulative of other evidence; (3) the
presence or absence of evidence corroborating or contradicting the out-of-court statement on material points; and (4) the overall strength of the
prosecution’s case. Scott, 227 S.W.3d at 690.



                                                                            –5–
       B. Admission of computer records

       In his second issue, appellant complains of the trial court’s admission of State’s Exhibits

30, 31, and 32. He contends the exhibits were “not properly before the court” because “the State

did not technically get them admitted.” He also complains that the records “were not judgments

of conviction, merely computer-generated disposition,” and the State did not connect him to the

evidence. At trial, appellant objected that the exhibits were not self-authenticating certified

copies of public records. He also objected to the lack of identifying information connecting him

to the exhibits. He contends these objections should have been sustained, and that a new

punishment hearing is required because they were not.

       The State responds that “the abstracts of appellant’s prior convictions were sufficiently

identified to permit their admission, and in any event any error was harmless in light of the

record as a whole.” State’s Exhibits 30–32 are computer printouts of database entries for 1979,

1981, and 1982 misdemeanor marijuana charges. Each is for “Russell Rafael Whitehead” with a

date of birth of “02111956.” State’s Exhibit 27, the marriage license for appellant and Debra,

reflects that appellant’s name is “Russell Rafael Whitehead” and his date of birth is “2-11-56.”

Debra also testified to appellant’s full name and his birthdate of February 11, 1956. Defense

counsel conceded during closing argument at the punishment phase of the trial that appellant

“did have some misdemeanor marijuana charges several years ago that are in evidence, but

there’s nothing else in the record regarding charge[s] of violent behavior or any other crime of

violence on Mr. Whitehead’s record.” Other than this argument, there is nothing in the record to

indicate the trial court considered Exhibits 30–32 in assessing 25 years’ imprisonment for

appellant’s aggravated assault of his wife.

       The State concedes that the trial court did not explicitly admit the exhibits but “merely

overruled appellant’s objections to their admission.” Assuming the trial court did admit the

                                              –6–
exhibits into evidence erroneously, we conclude that any such error did not result in harm to

appellant. We review non-constitutional harm under the guidance of Texas Rule of Appellate

Procedure 44.2(b), which provides that we disregard any error that does not affect appellant’s

substantial rights. A substantial right is affected when the error had a substantial and injurious

effect or influence in determining a jury’s verdict. Scales v. State, 380 S.W.3d 780, 786 (Tex.

Crim. App. 2012). In making the harm analysis, we examine the entire trial record and calculate,

as much as possible, the impact of the error upon the rest of the evidence. See Coble v. State,

330 S.W.3d 253, 280 (Tex. Crim. App. 2010).

       At the outset of the punishment phase, the trial court stated that the range of punishment

was not less than five nor more than ninety-nine years or life in the penitentiary. The trial court

assessed a 25-year sentence. The trial court heard evidence of the serious injuries suffered by

appellant’s wife from the 2012 assault, including medical testimony during the guilt/innocence

phase of the trial from her neurosurgeon about the extent of her life-threatening injuries. The

trial court confirmed the jury’s finding of the use of a deadly weapon, “the hand or elbow of

Russell Whitehead or object unknown to the Grand Jury during the commission of said assault.”

We conclude that any error in the admission of the computer records had no impact on the trial

court’s sentence of 25 years, and was harmless. We overrule appellant’s second issue.

       C. Restitution

       The code of criminal procedure provides that a trial court that sentences a defendant may

order the defendant to make restitution to a victim of the offense. See TEX. CODE CRIM. PROC.

ANN. art. 42.037(a) (West Supp. 2014). A trial court’s pronouncement of sentence is oral, while

the judgment, including the sentence assessed, is merely the written declaration and embodiment

of that oral pronouncement. Id. art. 42.01 § 1 (West Supp. 2014); Burt v. State, 445 S.W.3d 752,

757 (Tex. Crim. App. 2014).       When the oral pronouncement of sentence and the written

                                               –7–
judgment vary, the oral pronouncement controls. Burt, 445 S.W.3d at 757.              An order of

restitution must be included in the trial court’s oral pronouncement of sentence. See id. The

appropriate remedy when restitution improperly has been placed in the written judgment is to

modify or reform the judgment to delete the order of restitution. Sauceda v. State, 309 S.W.3d

767, 769 (Tex. App.—Amarillo 2010, pet. ref’d).

       The State concedes that the sentence of restitution should have been orally pronounced

by the trial court in appellant’s presence at sentencing. Citing Burt, the State urges that we abate

the appeal and remand the cause to the trial court for “clarification of the trial court’s sentence,

including the restitution award.” In Burt, the court remanded the case for a restitution hearing

where the amount and recipients of restitution were not orally pronounced. Id. at 761. But in

contrast to the record here, the trial court in Burt has orally pronounced the “fact” of restitution

in sentencing, but not an amount. Id. at 759. The Burt court contrasted cases “in which neither

the parties nor the judge ever mentioned restitution during the sentencing hearing or as part of

the sentence.” Id. The court explained, “[i]n those cases, the defendant was never put on notice

that restitution might be ordered until it first appeared in the written judgment.” Id. at 759–60.

The court further explained:

               That scenario leaves the defendant without notice and incapable of
               objecting or preparing a defense to the restitution order. That
               procedure—failing to mention restitution until its entry in the
               written judgment—also violates a defendant’s legitimate
               expectation that the sentence actually received is the same as that
               orally pronounced in open court. In effect the restitution order
               popped up unexpectedly in the written judgment. In those cases,
               the defendant was entitled to have the restitution order deleted
               because the written judgment did not match the oral
               pronouncement of sentence.

Id. (footnotes omitted).

       The trial court erred by failing to orally pronounce the sentence of restitution. We

therefore sustain appellant’s third issue, and reform the trial court’s judgment to delete the
                                                –8–
language regarding the payment of restitution. See Alexander v. State, 301 S.W.3d 361, 364

(Tex. App.—Fort Worth 2009, no pet.) (appellate court may reform judgment to delete payment

of restitution).

                                          CONCLUSION

        We overrule appellant’s first and second issues. We sustain his third issue, modify the

trial court’s judgment to delete the language regarding payment of restitution, and affirm the trial

court’s judgment as modified.




                                                      /Michael J. O'Neill/
                                                      MICHAEL J. O’NEILL
                                                      JUSTICE


Do Not Publish
TEX. R. APP. P. 47.2(b)

140230F.U05




                                                –9–
                                        S
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                      JUDGMENT

RUSSELL R. WHITEHEAD, Appellant                     On Appeal from the County Court At Law
                                                    No. 1, Kaufman County, Texas
No. 05-14-00230-CR         V.                       Trial Court Cause No. 31618CC.
                                                    Opinion delivered by Justice O’Neill,
THE STATE OF TEXAS, Appellee                        Justice Fillmore and Chief Justice Thomas,
                                                    Retired, participating.

        Based on the Court’s opinion of this date, the judgment of the trial court is MODIFIED
to delete the order of restitution.

As REFORMED, the judgment is AFFIRMED.


Judgment entered this 31st day of December, 2014.




                                             –10–
