Davis v. StateDavis v. State
- Reporters:
- , ,
- Before:
- Lagarde
OPINION
LAGARDE, Justice.Charla Jean Davis appeals the revocation of her community supervision 1 following her conviction for burglary of a habitation. See Tex.Code CRiM. PROG. Ann. art. 42.12, § 23(b) (Vernon Supp.1998). In appellant’s presence at the conclusion of the probation-revocation hearing, the trial court orally pronounced a sentence of ten years’ imprisonment but did not orally pronounce assessment of a fine. The written judgment revoking рrobation however, includes a $500 fine. In three points of error, appellant contends: (a) the trial court erred in entering a written judgment that varies from the sentence pronouncеd in her presence; and (b) her guilty plea leading to her conviction in the underlying case was involuntary because she did not receive oral admonishments. We overrule appellаnt’s first point of error, dismiss her second and third points of error, and affirm the trial court’s judgment revoking appellant’s probation.
PROCEDURAL BACKGROUND
Appellant was indicted for burglary of a habitation. On February 29, 1996, appellant pleaded guilty pursuant to a plea bargain. The trial court found appellant guilty and, in accordance with the plea bargain, assessed her punishment at ten years’ imprisonment, probated for four years, and a $500 fine. The fine was not probated, and the trial court sentenced appellant to pay the fine. The court made payment of the finе a condition of the probation of the term of imprisonment.
The State subsequently filed a motion to revoke probation, alleging that appellant had violated the conditions оf probation by committing two forgeries, using marijuana, and
THE FINE IN THE JUDGMENT
In her first point of error, appellant contends that the trial court erred in entering a different sentence on the written judgment from the sentence pronounced in appellant’s presence at the probation revоcation hearing. Appellant requests that we reform the judgment by deleting the fine. Appellant does not assert that the fine was not assessed and imposed in her presence at the рlea hearing. Nor does she contend that the fine portion of the sentence had been probat: ed or suspended, or that the fine had been paid.
Article 42.03, section 1(a) of thе code of criminal procedure requires that the sentence be pronounced in the defendant’s presence. See Tex.Code Crim. PROC. Ann. art. 42.03(l)(a) (Vernon Supp.1998); see also Coffey v. State, 979 S.W.2d 328 (Tex.Crim.App. 1998) (oral pronоuncement, of sentence controls over written memorialization of the sentence). The code of criminal procedure defines the sentence as “that part of the judgmеnt, or order revoking a suspension of the imposition of a sentence lie., revocation of probation], that orders that the punishment be carried into execution in the manner prеscribed by law.” Tex.Code CRIM. Prog. Ann. art. 42.02 (Vernon Supp.1998). 2
When a defendant is placed on probation, “the imposition of sentence is suspended”; i.e., the defendant’s punishment has been assessed, but the court has postponed ordering the execution of the punishment. See id. art. 42.12, § 2(2)(B). Imposition of sentence may be suspended in whole or in part. See id. When a defendant’s probation is revoked, the trial court imposes the sentence by ordering the previously assessed punishment “be carried into execution.” Id. art. 42.02.
At appellant’s plea hearing, the imposition of sentence wаs suspended in part, not in whole.
See
At the plea hearing, in appellant’s presence, the trial court announced that appellant’s punishment was assessed at ten years’ imprisonment and a $500 fine. The trial court imposed the sentence of the fine but suspended imposition of the sentence* of imprisonment. Thus, the trial court “pronounced” the sentence of the $500 fine in appellant’s presence and imposed the sentence by ordering that it be paid as a condition of probation.
See Coffey,
979 S.W.2d at 329. From that moment, appellant was obligated to pay the fine as part of her sеntence
At the conclusion of the probation-revocation hearing, the court “sentenced” appellant to the term of imрrisonment by “revoking suspension of the imposition of a sentence [of imprisonment,]” and “ordering] that the punishment [of imprisonment] be carried into execution.”
See
Tex.Code Crim. PROC. Ann. art. 42.02 (Vernon Supp.1998). By dоing so, the trial court pronounced the sentence of imprisonment in appellant’s presence. Because the trial court had pronounced and imposed the sentenсe of the $500 fine at the plea hearing, the court was not required to repronounce the fine at the conclusion of the probation-revocation hearing.
4
See Coffey,
979 S.W.2d at 329;
see also Fair v. State,
710 S.W.2d 188, 190 (Tex.App.—Corpus Christi 1986, no pet.) (reaching the same holding but without analysis or authority). The trial court was authorized to include the outstanding sentence of the fine into the judgment and sentence following revocation of appellant’s probation to create a single written judgment and sentence for the case.
See Coffey,
979 S.W.2d at 329;
see also
We overrule appellant’s first point of error.
VOLUNTARINESS OF THE PLEA
In her second and third points of error, appellant contends her original guilty plea was involuntary because the trial court did not orally admonish her on the punishment range and the possibility of deportation before accepting her guilty plea.
5
The trial court assessed appellаnt’s punishment and placed her on probation at the plea hearing. No motion for new trial was filed during the thirty days following that date. Therefore, appellant’s right to complain on appeal about the sufficiency of her admonishments expired on Monday, April 1, 1996.
See
TexCode Crim. Proc. Ann. art. 42.12, § 23(b) (Vernon Supp.1998);
We affirm the trial court’s judgment.
Notes
. For purposes of brevity and clarity, hereafter this opinion will utilize thе term “probation” instead of “community supervision.” All refer-enees to “probation” are intended to have the same meaning as the term “community supervision.”
. The code‘s use of the wоrd “sentence” is confusing. After carefully defining the term in article 42.02, the code uses “sentence” as a synonym . for “punishment” throughout article 42.12. Because article 42.12 -refers to imposition of the “sentence” instead of imposition of the “punishment,” we will do so.
. Appellant relies on Marshall v. State, 860 S.W.2d 142 (Tex.App.—Dallas 1993, no pet.), to support her argument that the trial court erred in including the $500 fine in the written judgment revoking her probation without repro-nouncing the fine in her presence when revoking her probation. Marshall contains the statement that sentence must be pronounced in the defendant‘s presence. See id. at 143. However, Marshall ‘s holding is that a deadly weapon finding is not part of the sentence and does not have to be pronounced in the defendant‘s presence. See id. Because Marshall does not concern the issue in this case, appellants rеliance on Marshall is misplaced.
. Under section 23(a) of article 42.12, the trial court had authority to reduce appellant‘s term of confinement when revoking her probation, but that provision does not authorize reduction or elimination of the fine.
See
. The record reflects that these admonishments were given in writing and that appellant and her attorney signed a statement that appellant understood the admonitions and was aware of the consequences of her plea.
See