NUMBER 13-12-00280-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG 

 

ALEX GUSTAVO GUERRERO, Appellant,

v.

THE STATE OF TEXAS, Appellee.

 

On appeal from the 252nd District Court 

of Jefferson County, Texas.

 

MEMORANDUM OPINION1

Before Chief Justice Valdez and Justices Rodriguez and Longoria 

Memorandum Opinion by Justice Rodriguez

Appellant Alex Gustavo Guerrero pleaded guilty to burglary of a habitation. See

TEX. PENAL CODE ANN. § 30.02(a)(1)(c)(2) (West 2011). The trial court deferred 

adjudication, placed appellant on unadjudicated probation for five years, and assessed a 

 

1

This case is before this Court on transfer from the Ninth Court of Appeals in Beaumont pursuant 

to an order issued by the Supreme Court of Texas. See TEX. GOV'T CODE ANN. § 73.001 (West 2005).
2

$500.00 fine. The State subsequently filed a motion to revoke. At the revocation 

hearing, appellant entered a plea of true to an allegation that he violated the terms of his 

probation by committing an aggravated robbery. At the conclusion of the hearing, the 

trial court found the allegation to be true, revoked appellant’s unadjudicated probation, 

found him guilty, and assessed punishment as confinement in the Institutional Division of 

the Texas Department of Criminal Justice for twenty years. The trial court did not orally 

assess a fine after finding appellant guilty. By three issues, appellant complains that the 

trial court erred when it included a $500.00 fine in the written judgment, a fine that was not 

orally pronounced in his presence after guilt was adjudicated. We affirm, as modified.

The record confirms that the trial court omitted the $500.00 fine when it orally 

pronounced Guerrero’s sentence. The State concedes that, although no fine is 

indicated in the judgment, a fine is included in the administrative fees calculation, which is 

referenced in the judgment. The State further concedes that the trial court did not 

mention a fine in the oral pronouncement of appellant’s sentence.

“‘When the oral pronouncement of the sentence and the written judgment vary, the 

oral pronouncement controls’ because ‘the written sentence or order simply 

memorializes’ the oral pronouncement.” State v. Davis, 349 S.W.3d 535, 538 (Tex. 

Crim. App. 2011) (quoting Ex Parte Madding, 70 S.W. 3d 131, 135 (Tex. Crim. App. 

2002)); see Taylor v. State, 131 S.W.3d 497, 502 (Tex. Crim. App. 2004) (“When an 

accused receives deferred adjudication, no sentence is imposed. Then, when guilt is 

adjudicated, the order adjudicating guilt sets aside the order deferring adjudication, 

including the previously imposed fine.”). A defendant has the right to have his sentence, 

including the assessment of any fines, pronounced in his presence, and the judgment 
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should be modified to delete a fine that is not pronounced in this manner. See TEX. CODE 

CRIM. PROC. ANN. art. 42.03, § 1(a) (West Supp. 2011); Taylor, 131 S.W.3d at 502; Abron 

v. State, 997 S.W. 2d 281, 282 (Tex. App.—Dallas 1998, pet. ref’d).

An intermediate appellate court may reform a trial court's judgment to make the 

record speak the truth when it has the necessary data and information to do so. See 

TEX. R. APP. P. 43.2(b) (“The court of appeals may . . . modify the trial court’s judgment 

and affirm it as modified.”); see Taylor, 131 S.W.3d at 502 (“Since the judge did not orally 

assess a fine as part of Taylor’s sentence when guilt was adjudicated [at the hearing on 

the motion to revoke his deferred adjudication], the Court of Appeals was correct to delete 

the fine from the judgment.”); Alexander v. State, 301 S.W.3d 361 (Tex. App.—Fort 

Worth, 2009 no pet.) (reforming the judgment to delete the amount of restitution that was 

not orally pronounced after appellant’s deferred adjudication was revoked and his guilt 

was adjudicated). Accordingly, we sustain Guerrero’s first, second, and third issues, and 

we modify the trial court's judgment to delete the $500.00 fine that was included in the 

administrative fees calculation.

Accordingly, we affirm the judgment, as modified.

NELDA V. RODRIGUEZ

Justice

Do not publish.

TEX. R. APP. P. 47.2(b).

Delivered and filed the 24th

day of January, 2013.