Mapps v. State

Full title: COREY TYRONE MAPPS, Appellant v. THE STATE OF TEXAS, Appellee

Court: Court of Appeals of Texas, Fifth District, Dallas

Date published: May 27, 2004

No. 05-03-01039-CR (Tex. App. May. 27, 2004)

Opinion

No. 05-03-01039-CR

Opinion issued May 27, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.

On Appeal from the Criminal District Court No. 5, Dallas County, Texas, Trial Court Cause No. F00-23654-IL. Affirmed.

Before Chief Justice THOMAS, Justices LANG-MIERS and LAGARDE.¹

1 The Honorable Sue Lagarde, Justice, Court of Appeals, Fifth District of Texas at Dallas, Retired, sitting by assignment.

OPINION

Opinion By Justice LAGARDE.

Appellant Corey Tyrone Mapps pleaded not guilty before a jury to the offense of indecency with a child. Tex. Pen. Code Ann. § 21.11(a)(1) (Vernon 2003). Appellant filed an application for probation and elected to have the jury set his punishment. The jury found appellant guilty and assessed his punishment at confinement in prison for seven years with a recommendation that the imposition of sentence be suspended and appellant be placed on community supervision. Based on the jury's verdict, the trial court suspended imposition of appellant's seven-year sentence and placed appellant on community supervision for ten years. The trial judge also assessed a $1500 fine. Concerned with the holding in Coffey v. State, 979 S.W.2d 326, 328 (Tex.Crim. App. 1998), that the oral pronouncement of sentence controls over the written judgment, appellant appeals his oral sentence which includes a $1500 fine not assessed by the jury.² For reasons that follow, we affirm the trial court's written judgment and sentence of seven years confinement and no fine. Appellant does not challenge the written judgment but "in an abundance of caution" has appealed to avoid the fine being entered at a later date. Moreover, citing Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App. 1984) (op. on reh'g)), appellant concedes that because the written judgment properly reflects the verdict of the jury, appellant has suffered no harm. Appellant simply prays "the Court not reform the judgment to include a fine assessed by the trial court." In response, the State concedes that Polk v. State, 693 S.W.2d 391 (Tex.Crim.App. 1985) prohibits the trial judge from imposing a fine as punishment when the jury had the option to do so, but did not. The State further acknowledges the written judgment correctly does not include a fine as part of appellant's sentence. Nevertheless, the State contends the trial court could legally impose a fine as a condition of probation; however, the State acknowledges the trial court did not do so.³ However, suggesting the trial court could correct that "clerical" mistake by a nunc pro tunc order or could modify or alter appellant's conditions of community supervision at any time, the State asks this Court to "affirm the judgment of the trial court and not make any orders precluding the trial court from issuing any legal or statutory [sic] authorized orders." Following the jury's verdict, the following occurred, in relevant part:

THE COURT: Mr. Mapps, the jury having found you guilty, as charge [sic] in the indictment, assess[ed] your punishment at seven years confinement in the penitentiary. I'm going to suspend imposition of that sentence, and place you on probation for ten years. I'm going to assess a fine of $1,500.00.

After appellant's counsel waived delay in sentencing, the following occurred, in relevant part:

THE COURT: It's the order and judgement of this Court that you be [sic] serve seven years confinement in the penitentiary, suspend imposition of that sentence and place you on probation for ten years. $1,500.00 fine.

The written sentence does not impose a fine. Both appellant and the State agree the trial judge could not legally assess a fine as punishment when appellant had elected to have the jury assess his punishment and, as the fact finder, the jury had the option to assess a fine, but did not do so. Polk, 693 S.W.2d at 394 (an affirmative finding regarding defendant's use or exhibition of a deadly weapon may be made ". . . if the trier of fact is presented with and responds in the affirmative"). Moreover, the State concedes the trial judge did not impose a fine as a condition of probation.⁴ Although we agree with both parties that Coffey v. State, 979 S.W.2d at 328 holds that the oral pronouncement of sentence controls over the court's written judgment, we do not agree that Coffey controls here. In Coffey, both the oral and written sentence assessed legally authorized punishment, thus both were enforceable; consequently, the court had to decide which prevailed. Here that is not the case. As the Fort Worth court has earlier recognized, nothing in Coffey suggests that, if the oral pronouncement of sentence is legally unenforceable, as in the present case, the unenforceable oral pronouncement nonetheless prevails over an enforceable written sentence as set forth in the judgment. Ribelin v. State, 1 S.W.3d 882, 885 n. 2 (Tex. App.-Fort Worth 1999) (pet. ref'd). Both parties agree the assessment and oral pronouncement of a fine as punishment by the trial court, when the jury was the trier of fact, was unauthorized. Not being authorized punishment, it is unenforceable. The written sentence comports with the jury's verdict and does not contain a fine, thus, it is enforceable. Just as in Ribelin, the trial court committed error, but not harmful error. The trial court's error does not arise from the imposition of an illegal sentence, but from the variance between the court's oral pronouncement of sentence and its written judgment. We may reverse, however, only if the variance affected Ribelin's substantial rights. See TEX. R. APP. P. 44.2(b); see also Cain v. State, 947 S.W.2d 262, 264 (Tex.Crim.App. 1997). Because the trial court's error of variance does not affect appellant's substantial rights, it is harmless, not reversible, error. We, therefore, AFFIRM the trial court's written judgment.⁵

2 It is the pronouncement of sentence that is the appealable event, and the written sentence simply memorializes it and should comport therewith. Coffey v. State, 979 S.W.2d 326, 328 (Tex.Crim. App. 1998). The sentence is the part of the judgment "that orders that the punishment be carried into execution in the manner prescribed by law." Tex. Code Crim. Proc. Ann. Art. 42.02 (Vernon Supp. 2003).

3 The State relies on sections 11(a)(8) and 11(b) of the Texas Code of Criminal Procedure. Tex. Code Crim. Proc. Ann. Art. 42.12 §§ 11(a)(8) and 11(b) (Vernon Supp. 2003).

4 The State argues, however, the trial court had the legal authority to assess a fine as a condition of probation and suggests the failure to do so was a "clerical" mistake subject to correction by entry of a judgment nunc pro tunc. We need not address this contention, however, because it is speculative and premature. Moreover, we note there is no evidence in the record before us that the written judgment was mistakenly or inadvertently signed by the trial court. See Smith v. State, 15 S.W.3d 294, 300 (Tex. App.-Dallas 2000, no pet.) (error is judicial where record is "devoid of any indication that order was mistakenly or inadvertently signed by the trial court"). Only if and when those events occur, if they do, will they be ripe for resolution if challenged by appellant.

5 Both appellant and the State requested this court to affirm the trial court's written judgment.