Opinion
06-23-00052-CR
11-30-2023
TREMONT AKEEM DAVIS, Appellant v. THE STATE OF TEXAS, Appellee
Do Not Publish
Date Submitted: October 24, 2023
On Appeal from the 102nd District Court Bowie County, Texas Trial Court No. 21F0140-102
Before Stevens, C.J., van Cleef and Rambin, JJ.
MEMORANDUM OPINION
JEFF RAMBIN, JUSTICE
The trial court revoked Tremont Akeem Davis's community supervision and sentenced him to ten years' incarceration. The judgment also imposed a fine of $2,500.00. Davis appeals, complaining that the fine should be struck from the judgment because it was not orally pronounced and that the judgment incorrectly states that Davis pled true to the State's allegations in its motion to adjudicate. After reviewing the record and applicable law, we overrule Davis's first point of error and sustain the second. We will modify the trial court's judgment and otherwise affirm.
The State agrees that the trial court's judgment incorrectly reflects Davis's plea at the revocation hearing.
I. Background
On June 8, 2021, Davis pled guilty to possession of one gram or more but less than four grams of a penalty group 1 controlled substance. Per a plea agreement, the trial court deferred a finding of guilt and placed Davis on deferred adjudication community supervision for five years. The trial court also assessed a $2,500.00 fine, court costs and fees, and other conditions not relevant to this appeal.
See Tex. Health & Safety Code Ann. § 481.115(c) (Supp.).
On May 3, 2022, the trial court adjudicated Davis guilty of the possession charge and sentenced him to ten years' imprisonment. The adjudication was the result of a plea agreement in which Davis agreed that he failed to report to his community supervision officer and failed to perform community supervision hours. The trial court suspended the ten-year-prison sentence and placed Davis on community supervision for five years. The judgment assessing those terms also included the $2,500.00 fine and other fees, costs, and conditions, with "CREDIT FOR ANY FINES AND FEES ALREADY PAID."
There is no reporter's record of the May 3, 2022, adjudication hearing. However, there are indications in the record that sentence, including a fine, was orally pronounced in Davis's presence during the adjudication hearing. Among the grounds the State cited for proceeding to adjudication was that Davis had failed to stay current on the fine imposed as a condition of the community supervision associated with the deferred adjudication. The State, via affidavit of the community supervision officer and the motion to adjudicate, represented to the trial court that, at that time, Davis "owe[d] a balance of $890.00" on his fine. The adjudication was the result of a plea agreement. Davis signed a written consent form to conduct the plea hearing by videoconference. The clerk's minutes of the hearing state that Davis was sentenced to ten years' incarceration, to be probated for five years. The clerk's minutes also state that Davis was fined with "credit for any fines/fees already paid."
The State moved to revoke Davis's post-adjudication community supervision in February 2023. The State asserted multiple grounds, including six separate instances of Davis testing positive for marihuana use while on community supervision. One of the grounds asserted by the State was that Davis owed a fine of $2,500.00 and paid nothing towards the fine.
The motion to revoke was heard on March 13, 2023. There is a reporter's record of that hearing. Davis pled not true to all the allegations in the motion. After evidence and testimony were presented, the trial court found eight allegations true, revoked Davis's post-adjudication supervision, and sentenced him to ten years' imprisonment. The trial court stated, "The Court is going to revoke your probation, and I'm gonna assess your punishment at ten years in the penitentiary. I'll give you credit for any pretrial confinement time to which you may be entitled."
Concerning the fine, Davis's community supervision officer testified on direct examination during the revocation hearing that Davis had "paid a total of $215[.00] since being placed on" community supervision. On cross-examination, the community supervision officer stated that Davis worked one day a week at a shoe store when he was first placed on community supervision, but Davis left that job and was unable to provide verification of any subsequent employment. At the close of the March 13, 2023, revocation hearing, the trial court found many of the grounds asserted by the State to be true, including the grounds regarding marihuana use. However, the trial court declined to find the ground concerning the fine to be true. The trial court stated, "The Court is not going to make any findings with regards to number nine other than the testimony that [Davis] had paid some towards those financial obligations." The trial court's judgment of April 12, 2023, contained a fine of $2,500.00.
II. Standard of Review
Davis does not challenge the trial court's order revoking his supervision. His appellate complaints have to do with terms in the judgment. "This Court has the power to correct and modify the judgment of the trial court for accuracy when the necessary data and information are part of the record." Anthony v. State, 531 S.W.3d 739, 743 (Tex. App.-Texarkana 2016, no pet.) (citing Tex.R.App.P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27 (Tex. Crim. App. 1993); Asberry v. State, 813 S.W.2d 526, 529 (Tex. App.-Dallas 1991, pet. ref'd)). "The authority of an appellate court to reform incorrect judgments is not dependent upon the request of any party, nor does it turn on the question of whether a party has or has not objected in the trial court." Id. (quoting Asberry, 813 S.W.2d at 529-30).
On appeal, the State urged that we should modify the trial court's judgment to indicate that there was no fine. This does not preclude our review. We are "not bound by the State's concession regarding an issue of law." Hankston v. State, 656 S.W.3d 914, 918 (Tex. App.- Houston [14th Dist.] 2022, pet. ref'd) (citing Oliva v. State, 548 S.W.3d 518, 520 (Tex. Crim. App. 2018)).
III. Analysis
"A defendant's sentence must be pronounced orally in his presence." Taylor v. State, 131 S.W.3d 497, 500 (Tex. Crim. App. 2004) (citing Tex. Code Crim. Proc. Ann. art. 42.03, § 1(a) (Supp.)). Once orally pronounced during adjudication of guilt and sentencing, a fine can be included in a judgment of revocation without being "re-pronounced at the revocation hearing." Id. But a fine associated with deferred adjudication does not carry forward in this manner. Id. at 502. This is because "when an accused receives deferred adjudication, no sentence is imposed." Id. Consequently, "when guilt is adjudicated, the order adjudicating guilt sets aside the order deferring adjudication, including the previously imposed fine." Id.
"A trial court does not have the statutory authority or discretion to orally pronounce one sentence in front of the defendant, but enter a different sentence in his written judgment, outside the defendant's presence." Ex parte Madding, 70 S.W.3d 131, 136 (Tex. Crim. App. 2002) (orig. proceeding). "[I]n sentencing by the trial judge rather than a jury, the oral pronouncement and the written judgment are the only records of the punishment intended to be assessed." Ette v. State, 559 S.W.3d 511, 517 (Tex. Crim. App. 2018). However, "[t]he judgment, including the sentence assessed, is just the written declaration and embodiment of [the] oral pronouncement." Taylor, 131 S.W.3d at 500. "When there is a conflict between the oral pronouncement of sentence and the sentence in the written judgment, the oral pronouncement controls." Id.
While it is preferable to have a reporter's record of the oral pronouncement, the Texas Court of Criminal Appeals has concluded that oral pronouncement did in fact occur when that conclusion is supported by the clerk's record. Coffey v. State, 979 S.W.2d 326, 329 (Tex. Crim. App. 1998) ("Thus all of the evidence in the record indicates that at the original plea proceeding appellant was assessed a $750[.00] fine which was to be paid rather than probated."). This conclusion (i.e., that a fine was orally pronounced during the initial guilt and sentencing hearing) can be buttressed by what happens at a revocation hearing, such as when the parties express no surprise when the subject of a fine comes up, and they deal with the fine in a cursory manner. Id.
In this case, the record shows that Davis was placed on deferred adjudication community supervision in 2021. At that time, Davis was given a $2,500.00 fine as a condition of deferred adjudication.
There is no reporter's record of the 2022 adjudication of guilt and associated sentencing. However, pursuant to Coffey, there is enough evidence in the clerk's record for us to conclude that an oral hearing did occur and to piece together what was orally pronounced. As indicated in the clerk's minutes of the adjudication hearing, the trial court orally pronounced a fine of $2,500.00, with credit for amounts already paid as of that time. Davis did not appeal the fine at that time.
It was appropriate for the trial court to include the fine imposed at adjudication and sentencing in the subsequent judgment revoking his community supervision. See Jones v. State, No. 06-21-00048-CR, 2021 WL 4780221, at *2 (Tex. App.-Texarkana Oct. 14, 2021, no pet.) (mem. op., not designated for publication); Coffey, 979 S.W.2d at 329. The written judgment of revocation has a fine of $2,500.00 but does not provide any credit for amounts paid. However, the reporter's record of the revocation hearing shows that the trial court declined to make a true finding regarding the State's assertion (in the motion to revoke) that the total amount still owed was $2,500.00. Further, the trial court gave Davis credit for "[having] paid some towards those financial obligations." Therefore, the oral pronouncement at revocation indicates a continued intent by the trial court to impose a fine of $2,500.00, with credit for amounts paid, consistent with the judgment pronounced at sentencing. As a result, the fine reflected in the trial court's judgment does not need to be modified.
Further, the State agrees with Davis that the trial court's judgment states that Davis pled true to the allegations in the State's motion to revoke community supervision even though Davis pled not true. The record does show that Davis pled "[n]ot true." Pursuant to our "power to correct and modify the judgment . . . for accuracy," we modify the trial court's judgment to reflect Davis's plea of not true to the allegations in the motion to revoke. Anthony, 531 S.W.3d at 743.
IV. Conclusion
We modify the judgment to reflect Davis's pleas of not true to the allegations in the motion to revoke. As modified, we affirm the trial court's judgment.