                           NUMBER 13-07-00575-CR

                           COURT OF APPEALS

                 THIRTEENTH DISTRICT OF TEXAS

                   CORPUS CHRISTI - EDINBURG


DANIEL L. SAENZ,                                                           Appellant,

                                          v.

THE STATE OF TEXAS,                                                        Appellee.


                   On appeal from the 36th District Court
                      of San Patricio County, Texas.


                        MEMORANDUM OPINION

                Before Justices Rodriguez, Garza, and Vela
                 Memorandum Opinion by Justice Garza

      Appellant, Daniel L. Saenz, was charged by indictment with one count of aggravated

sexual assault of a child, a second degree felony.      See TEX . PENAL CODE ANN . §

22.011(a)(2), (f) (Vernon Supp. 2007). By one issue, Saenz contends that this Court

should remand this case for a new punishment hearing because there was a conflict

between the oral pronouncements made by the trial court at the subsequent revocation
hearing and the written judgment. We affirm.

                        I. FACTUAL AND PROCEDURAL BACKGROUND

       On February 7, 2006, Saenz was indicted for one count of aggravated sexual

assault of a child, a second degree felony. See id. § 22.011(a)(2), (f). On June 9, 2006,

the trial court, in accordance with Saenz’s plea agreement, deferred findings of guilt,

placed Saenz on community supervision for eight years, and imposed a fine of $1,500.00

and ordered $1,876.00 in restitution. On September 7, 2007, in response to the State’s

motion to revoke, the trial court revoked Saenz’s community supervision and sentenced

him to ten years’ imprisonment “along with payment of the unpaid balance of any fine to

be imposed in this case, costs and restitution.” At the revocation hearing on September

7, 2007, the trial court informed Saenz that: “[y]our community service is hereby revoked,

you’re sentenced to ten years[‘] imprisonment along with payment of the unpaid balance

of any fine to be imposed in this case, costs and restitution.” In its written Adjudication of

Guilt, the trial court noted that Saenz was sentenced to ten years in the Texas Department

of Criminal Justice-Institutional Division, a $1,500.00 fine was imposed, and $1,876.00 in

restitution was ordered. Also, on September 7, 2007, the trial court certified Saenz’s right

to appeal. The record does not demonstrate that Saenz filed a motion for new trial. On

September 14, 2007, Saenz filed his notice of appeal. This appeal ensued.

                                    II. APPLICABLE LAW

       Article 42.02 of the code of criminal procedure provides that a “sentence is that part

of the judgment, or order revoking a suspension of the imposition of a sentence, that

orders that the punishment be carried into execution in the manner prescribed by law.”

TEX . CODE CRIM . PROC . ANN . art 42.02 (Vernon 2006). Moreover, article 42.03 of the code

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of criminal procedure provides that the sentence shall be pronounced in the defendant’s

presence, except as provided in article 42.14.1 Id. art. 42.03 (Vernon Supp. 2007). In

addition, Texas courts have held that when there is a variation between the oral

pronouncement and the written memorialization of the sentence, the oral pronouncement

controls. Coffey v. State, 979 S.W.2d 326, 328 (Tex. Crim. App. 1998).

                                                 III. ANALYSIS

        By his sole issue, Saenz asserts that because the trial court did not pronounce that

it had adjudicated him in open court, this case should be remanded for a new sentencing

hearing.

        The record reflects that the court did, in fact, orally pronounce Saenz’s sentence in

open court at his community supervision revocation hearing at which he was present.

Specifically, the court stated, “[y]our community service is hereby revoked, you’re

sentenced to ten years imprisonment along with payment of the unpaid balance of any fine

to be imposed in this case, costs and restitution.” Furthermore, in comparing the written

judgment of the court with the Court’s oral pronouncement, there is no conflict. In both

instances, the court revoked Saenz’s community supervision, sentenced him to ten years’

imprisonment, and imposed a fine and restitution.

        Saenz relies on the holdings in Taylor v. State, 131 S.W.3d 497, 502 (Tex. Crim.

App. 2004) and Ibarra v. State, 177 S.W.3d 282, 284 (Tex. App.–Houston [1st Dist.] 2005,

no pet.), to support his contention that because the oral pronouncement of his sentence

allegedly differed from the written judgment, he is entitled to a new sentencing hearing.


        1
         Article 42.14 of the code of crim inal procedure allows the sentence to be pronounced if the
defendant is not present in a m isdem eanor case. T EX . C OD E C R IM . P R O C . A N N . art. 42.14 (Vernon 2006).
However, article 42.14 is inapplicable in this case—a felony case.

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However, these cases are not on point because Saenz failed to establish that any variation

between the oral pronouncement of his sentence and the written judgment actually existed.

The Taylor court specifically noted that when a variation exists between the oral

pronouncement of the sentence and the written judgment, the oral pronouncement

controls. See Taylor, 131 S.W.3d at 500. Therefore, had a variation actually existed,

Saenz would not be entitled to a new sentencing hearing given that the trial court’s oral

pronouncement would control. See id; see also Henkel v. State, No. 13-03-112-CR, 2005

Tex. App. LEXIS 2883, at *15 (Tex. App.–Corpus Christi Apr. 14, 2005, pet. ref’d) (noting

that, in the event of a variation between the written judgment and the oral pronouncement

of the sentence, we are authorized to: “(1) modify the trial court’s judgment and affirm it

as modified; or (2) remand for the trial court to make fact determinations as to whether the

written memorialization reflects what actually occurred.”) (internal citations omitted).

        Ibarra, on the other hand, involved a situation where the trial court failed to orally

pronounce a fine in open court, yet imposed a fine in the written judgment. Ibarra, 177

S.W.3d 282 at 283. Based on this mistake, the appellate court concluded that the trial

court had erred in not assessing the fine in the oral pronouncement of the appellant’s

sentence as required by statute. Id. at 284. As a result, the appellate court vacated the

trial court’s judgment and remanded the case for a new punishment hearing. Id at 284.

Here, unlike Ibarra, no variation existed between the oral pronouncement of Saenz’s

sentence and the written judgment.2


        2
            W e also note that Saenz’s sentence is within the statutorily prescribed range; therefore, unlike
Ibarra, the trial court here did not im pose a void sentence. See Ibarra v. State, 177 S.W .3d 282, 284 (Tex.
App.–Houston[1st Dist.] 2005, no pet.); see also T EX . P EN AL C OD E A N N . § 12.33(a) (Vernon 2003) (providing
that “[a]n individual adjudged guilty of a felony of the second degree shall be punished by im prisonm ent in the
institutional division for any term of not m ore than 20 years or less than 2 years”).

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       Additionally, Saenz argues that the trial court was required to state at the sentencing

hearing that it had “adjudicated” his guilt and was imposing his sentence. We are not

aware of, nor does Saenz cite to, any authority requiring the trial court to specifically state

the term “adjudicate” in either phase of a criminal trial. Based on the foregoing, we

conclude that Saenz is not entitled to a new punishment hearing. Accordingly, we overrule

his sole issue on appeal.

                                       IV. CONCLUSION

       We affirm the judgment of the trial court.




                                                    DORI CONTRERAS GARZA,
                                                    Justice

Do not publish.
TEX . R. APP. P. 47.2(b).
Memorandum Opinion delivered and
filed this the 12th day of June, 2008.




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