      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                        NO. 03-14-00468-CR
                                        NO. 03-14-00469-CR



                                 Mitchell Hollis Wright, Appellant

                                                   v.

                                    The State of Texas, Appellee


      FROM THE DISTRICT COURT OF MILAM COUNTY, 20TH JUDICIAL DISTRICT
                          NOS. CR23,384 & CR23,385,
            THE HONORABLE JOHN YOUNGBLOOD, JUDGE PRESIDING



                              MEMORANDUM OPINION


                Appellant Mitchell Hollis Wright was placed on deferred adjudication community

supervision after he pled guilty to two offenses of theft of property valued at $1,500 or more but less

than $20,000. See Tex. Penal Code § 30.03(a), (e)(4)(A); Tex. Code Crim. Proc. art. 42.12, § 5(a).

Subsequently, the trial court granted the State’s motion to adjudicate guilt in each case after finding

that appellant had violated the conditions of supervision.1 The court adjudicated appellant guilty,

        1
              The State’s motion to adjudicate in cause number CR23,384 (appeal number
03-14-00468-CR) contained three allegations of violation: the commission of a family violence
assault offense against his wife, the failure to pay supervision fees, and the failure to perform
community service work. The State’s motion to adjudicate in cause number CR23,385 (appeal
number 03-14-00469-CR) contained six allegations of violation: the commission of a family
violence assault offense against his wife, the failure to pay court costs, the failure to pay restitution,
the failure to submit to drug or alcohol testing, the failure to pay the crime stopper program fee, and
the failure to perform community service work. At the adjudication hearing, appellant pled true to
all of the allegations in both motions, and the trial court ordered a presentence investigation and reset
the cases for sentencing. At the sentencing hearing, both the State and appellant presented further
revoked his community supervision, and assessed his punishment at 18 months’ confinement in a

state jail facility in each case, ordering the sentences to run concurrently. See Tex. Code Crim. Proc.

art. 42.12, § 5(b); Tex. Penal Code § 12.35. In three points of error on appeal, appellant complains

about non-reversible error in the written judgments of adjudication. Based on our examination of

the trial court record, we agree and modify the judgments adjudicating guilt and affirm the judgments

as modified.


                                            DISCUSSION2

                In his first two points of error, appellant complains about error in the written

judgment adjudicating guilt in cause number CR23,385 (appeal number 03-14-00469-CR) asserting

that the judgment (1) erroneously orders him to pay restitution and (2) assesses an incorrect amount

of court costs that improperly includes a restitution fee. In his third point of error, appellant

complains that both judgments adjudicating guilt contain error regarding the Penal Code statute

listed as the statute for the offense.



evidence. Appellant then requested that his community supervision be extended and his conditions
be modified to “allow him to take advantage of the programs that probation has to offer.” The State
sought adjudication of guilt and revocation of supervision.
        2
           In lieu of a brief, the State filed a letter response agreeing “that the weight of authority is
against the State in all of the Appellant’s points of error” and requesting that this Court “affirm [the
judgments adjudicating guilt] as modified pursuant to Appellant’s prayer for relief.”
         While the State’s confession of error in a criminal case is significant, it is not conclusive nor
is it binding on this Court; we must make an independent examination of the merits of any claim of
error raised on appeal. See Saldano v. State, 70 S.W.3d 873, 884 (Tex. Crim. App. 2002) (“A
confession of error by the prosecutor in a criminal case is important, but not conclusive, in deciding
an appeal.”); see also Young v. United States, 315 U.S. 257, 258–59 (1942) (“The considered
judgment of the law enforcement officers that reversible error has been committed is entitled to great
weight, but our judicial obligations compel us to examine independently the errors confessed.”).

                                                    2
                                            Restitution

               In his first point of error, appellant argues that the order that he pay $4,050.00 in

restitution should be deleted from the judgment adjudicating guilt in cause number CR23,385

because the trial court did not order the restitution when it orally pronounced his sentence following

the adjudication of guilt.

               When a defendant receives deferred adjudication, no sentence is imposed. Taylor

v. State, 131 S.W.3d 497, 502 (Tex. Crim. App. 2004). When the defendant violates a condition of

deferred adjudication community supervision, the court may proceed to adjudicate guilt, assess

punishment, and pronounce sentence. See Tex. Code Crim. Proc. art. 42.12, § 5(b) (“After an

adjudication of guilt, all proceedings, including assessment of punishment, pronouncement of

sentence, granting of community supervision, and defendant’s appeal continue as if the adjudication

of guilt had not been deferred.”); Taylor, 131 S.W.3d at 499. When guilt is adjudicated, the

judgment adjudicating guilt sets aside the order deferring adjudication. See Taylor, 131 S.W.3d at

501–02; Alexander v. State, 301 S.W.3d 361, 363 (Tex. App.—Fort Worth 2009, no pet.).

               A sentence must be orally pronounced in the defendant’s presence. Tex. Code Crim.

Proc. art. 42.03, § 1(a); Taylor, 131 S.W.3d at 500; see Burt v. State, 445 S.W.3d 752, 757 (Tex.

Crim. App. 2014). The judgment, including the sentence assessed, is merely the written declaration

and embodiment of that oral pronouncement. Tex. Code Crim. Proc. art. 42.01, § 1; Burt,

445 S.W.3d at 757; Taylor, 131 S.W.3d at 500. When the oral pronouncement of sentence and the

written judgment vary, the oral pronouncement controls. Burt, 445 S.W.3d at 757; Taylor,

131 S.W.3d at 500; Thompson v. State, 108 S.W.3d 287, 290 (Tex. Crim. App. 2003).



                                                  3
                A sentencing court may order a defendant to make restitution to any victim of the

offense. See Tex. Code Crim. Proc. art. 42.037(a). Restitution is punitive in nature. Weir v. State,

278 S.W.3d 364, 366 (Tex. Crim. App. 2009); see Ex parte Cavazos, 203 S.W.3d 333, 338 (Tex.

Crim. App. 2006) (noting court’s prior holding that “restitution is punishment”). Therefore, an order

of restitution must be contained in the trial court’s oral pronouncement of sentence in order to be

included in the written judgment. Burt, 445 S.W.3d at 757; Sauceda v. State, 309 S.W.3d 767, 769

(Tex. App.—Amarillo 2010, pet. ref’d); Alexander, 301 S.W.3d at 364. When the trial court fails

to order restitution as part of the oral pronouncement of sentence yet restitution appears in the written

judgment, the defendant is entitled to have the order of restitution deleted from the judgment. Burt,

445 S.W.3d at 760 (noting cases where defendant was entitled to have restitution order deleted from

written judgment because judgment did not match oral pronouncement of sentence); see, e.g.,

Sauceda, 309 S.W.3d at 769; Alexander, 301 S.W.3d at 363–64.

                In this case, the trial court assessed restitution as a condition of appellant’s deferred

adjudication community supervision. Subsequently, the trial court adjudicated appellant guilty,

revoked his community supervision, and sentenced him to 18 months’ confinement in a state jail

facility. When the trial court adjudicated appellant’s guilt, the order granting him deferred

adjudication community supervision—which included the requirement that he pay restitution as a

condition of his community supervision—was set aside. Appellant was not sentenced until his guilt

was adjudicated and his sentence was orally pronounced at the sentencing hearing that followed his

adjudication. At that time, the trial court did not order appellant to pay any amount of restitution to




                                                   4
any person. Yet, an order for appellant to pay restitution in the amount of $4,050.00 to the victim

of the theft was included in the trial court’s written judgment adjudicating guilt.

                  We sustain appellant’s first point of error and modify the trial court’s judgment

adjudicating guilt in cause number CR23,385 to delete the language regarding the payment

of restitution.


                                              Court Costs

                  In his second point of error, appellant challenges the court costs assessed in the

judgment adjudicating guilt in cause number CR23,385. He argues that there is no factual basis to

support the inclusion of a $12.00 restitution fee in the court costs.

                  “[C]ourt costs are not part of the guilt or sentence of a criminal defendant, nor must

they be proven at trial; rather, they are ‘a nonpunitive recoupment of the costs of judicial resources

expended in connection with the trial of the case.’” Johnson v. State, 423 S.W.3d 385, 390 (Tex.

Crim. App. 2014) (quoting Armstrong v. State, 340 S.W.3d 759, 767 (Tex. Crim. App. 2011)); see

Weir, 278 S.W.3d at 367. Consequently, appellate review of the assessment of court costs is to

determine if there is a basis for the cost, not to determine if there was sufficient evidence offered at

trial to prove each cost. Johnson, 423 S.W.3d at 390. An appellant can raise his court-costs claim

for the first time on appeal. Id. at 391.

                  Pursuant to article 42.037(g)(1) of the Code of Criminal Procedure, a trial court may

require a defendant to make restitution in specified installments.            Tex. Crim. Proc. Code

art. 42.037(g)(1). If the court does so, the statute further authorizes the trial court to require the

defendant to pay a one-time restitution fee of $12.00. Id.

                                                    5
                   In this case, the judgment adjudicating guilt includes court costs in the amount of

$206.00. The bill of costs associated with the judgment reflects that these costs include a $12.00

restitution fee. Appellant argues that this portion of the court costs should be deleted because there

is no factual basis for this fee. He first contends that the factual basis is lacking because the

restitution order was improperly included in the written judgment adjudicating guilt as discussed

earlier, see discussion supra pp. 3–5, and without a proper order of restitution, no restitution fee can

be assessed. Appellant next asserts that even had restitution been properly ordered, the factual basis

for the restitution fee is still lacking because article 42.037(g)(1) authorizes the imposition of a

restitution fee only when the trial court requires the restitution to be made in specified installments.

See Tex. Crim. Proc. Code art. 42.037(g)(1). He notes that the restitution order in the judgment

adjudicating guilt in this case ordered the repayment of restitution in the amount of $4,050.00 in a

lump sum, not in specified installments.

                   We agree with appellant that there is no basis for the imposition of the restitution fee

as part of the court costs in this case. Accordingly, we sustain his second point of error and modify

the court costs in the judgment adjudicating guilt in cause number CR23,385 to delete the $12.00

restitution fee.


                                       Clerical Error in Judgments

                   In his third point of error, appellant notes that the written judgment adjudicating guilt

in each of these cases contains a clerical error. The judgments state that the “Statute for Offense”

is “30.02 Penal Code.” However, section 30.02 of the Penal Code is the statute for burglary. The

statute for the theft offenses as alleged in the indictments in these cases is section 31.03(a), (e)(4)(A)

                                                      6
of the Penal Code. This Court has authority to modify incorrect judgments when the necessary

information is available to do so. See Tex. R. App. P. 46.2(b); Bigley v. State, 865 S.W.2d 26, 27–28

(Tex. Crim. App. 1993). Accordingly, we modify the incorrect judgments adjudicating guilt to

reflect the correct Penal Code section.


                                          CONCLUSION

               Having sustained appellant’s three points of error, we modify the trial court’s

judgments adjudicating guilt as noted.



                                              __________________________________________
                                              Cindy Olson Bourland, Justice

Before Justices Puryear, Pemberton, and Bourland

03-14-00468-CR         Modified and, as Modified, Affirmed

03-14-00469-CR         Modified and, as Modified, Affirmed

Filed: July 28, 2015

Do Not Publish




                                                 7
