1 In The 

### Court of Appeals Ninth District of Texas at Beaumont

__________________ NO
. 09

- 21

- 00151

- CR

__________________ BRADLEY JOSEPH PRUITT , Appellant
V.
THE STATE OF TEXAS , Appellee

__________________________________________________________________ On Appeal from the 356 th District Court Hardin County, Texas Trial Cause No. 25286

__________________________________________________________________ MEMORANDUM OPINION A jury found Bradley Joseph Pruitt guilty of aggravated assault of a public servant and assessed Pruitt ’s punishment at ninety

- nine years of imprisonment and assessed a $10,000 fine

. See Tex. Penal Code Ann. § 22.02(a)(1), (b)(2)(B). In one issue on appeal, Pruitt’s counsel addresses whether the trial court erred by including an order of restitution in the written judgment that was not supported by a jury2 verdict findin g or part of the trial court’s oral pronouncement of Pruitt’s sentence. 1
We affirm the trial court’s judgment as modified.
PERTINENT PROCEDURAL BACKGROUND After the jury found Pruitt guilty of aggravated assault of a public servant, the trial court proceed ed with the punishment phase of Pruitt’s trial. The record shows that the State did not mention restitution during the punishment phase, and the jury charge did not include a request that the jury make a finding concerning restitution. The jury retu rned a verdict assessing Pruitt’s punishment at ninety

- nine years of confinement and a $10,000 fine, and the trial court orally pronounced Pruitt’s

sentence , which did not include an order that Pruitt pay restitution. The trial court’s written judgment ind icates Pruitt was ordered to pay “733,964.74” in restitution, and the “special findings” ordered Pruitt to pay $4,512.22 restitution to the Office of the Attorney General and $729,452.52 to the TML Governmental Risk Pool.
ANALYSIS In his sole issue, Prui tt argues this Court should vacate the judgment and remand the case to the trial court for a restitution hearing despite the State failing to present any evidence regarding restitution during his trial and t he trial court failing

1 On March 18, 2022, this Court abated the appeal and remanded the case to the trial court for appointment of new counsel to address any arguable errors and specifically directed new appellate counsel to address whether the trial court erred by including an order of restitution in the written judgment.3 to orally pronounce restitution as part of his punishment. The State agrees that Pruitt may be entitled to have the restitution order deleted , because the law requires a trial court’s written judgment to comport with the sentence orally pronounced and the amount of restitution must have a factual basis in the record

. However, the State recommends that we remand the case for the trial court to conduct a restitution hearing. Both Pruitt and the State rely on Burt v. State , 445 S.W.3d 752 (Tex. Crim. App. 2014) , to support th e contenti on that the case should be remanded for a restitution hearing because there is insufficient factual evidence to support the amount of restitution. Due Process requires that a defendant receive fair notice of all the terms of his sentence, which must be orally pronounced in his presence. See Tex. Code Crim. Proc. Ann. art. 42.03 § 1(a); Burt , 445 S.W.3d at 757. The written judgment, including the sent ence assessed, is merely the written declaration and embodiment of that oral pronouncement. Taylor v. State , 131 S.W.3d 497, 500 (Tex. Crim. App. 2004). Generally, w hen the oral pronouncement of sentence and the written judgment vary, the oral pronouncement controls. Id. ; Ex p arte Madding , 70 S.W.3d 131, 135 (Tex. Crim. App. 2002) ; see also Ette v. State, 559 S.W.3d 511, 516

- 17 (Tex. Crim. App. 2018) (acknowledging this rule but noting an exception where the trial court’s oral pronouncement conflicts with the jury’s lawful verdict that has been read aloud in the defendant ’s presence).4 Restitution is punishment, and it must be included in the trial court’s oral pronouncement of sentence to be properly included in the written judgment. Ex parte
Cavazos , 203 S.W.3d 333, 338 (Tex. Crim. App. 2006)

. As such, the assessment of restitution should be orally pronounced in open court in the presence of the
defendant. Brown v. State , No. 02

- 08

- 063

- CR, 2009 WL 1905231, at * 2 (Tex. App.

—
Fort Worth July 2, 2009, no pet.) (mem. op., not designated for publication). If it is

not so announced, the defendant may be entitled to have the restitution order deleted from the judgment. Burt , 445 S.W.3d at 760 (so recognizing) ; see Taylor , 131 S.W.3d at 500, 502 ( discussing fine as punishment which must be orally pronounced)

. The record shows the State did not mention restitution during the punishment phase of the trial. Although the State presented testimony from the victim’s wife about the victim’s injuries and m edical care, it failed to present any evidence concerning the cost of that care. The jury charge for punishment did not include a request that the jury make a finding concerning restitution , and there were no objections to the jury charge

. Pruitt elected f or the jury to assess his punishment, and the jury’s verdict did not include restitution as part of his punishment. The State argues this Court should vacate the restitution order and remand the case for a hearing on restitution to strike the necessary ba lance between the defendant’s right to be heard and the public policy that favors granting restitution to5 crime victims. See Tex. R. App. P. 43.2 ; Tex. Code Crim. Proc. Ann. art. 42.037 (allowing the court to order a defendant convicted of an offense to ma ke restitution to any victim); Hanna v. State , 426 S.W.3d 87, 91 (Tex. Crim. App. 2014) (citations omitted)

. Pruitt also conten ds that this Court may vacate the restitut ion order and remand for a restitution hearing.
In Burt , the trial court orally pronounced restitution at sentencing but failed to state an amount, and the trial court informed the parties that if they could not agree upon an amount, a restitution hearing would be necessary. Burt , 445 S.W.3d at 759. The Burt C ourt distinguished its facts from other cases in which neither the parties

n or the judge ever mention ed restitution during the sentencing hearing or as part of the oral pronouncement of sentence. Id. a t 759 & n.32 (citing cases where defendant was never put on notice that restitution may be ordered until it first appeared in the written judgment)

. Importantly, the Burt Court noted that when a trial court order s restitution in its written judgment but no t in its oral pronouncement of judgment, the oral pronouncement controls and the defendant is entitled to have the restitution deleted

. Id. at 759

- 60 & n.33

. Here, the trial court did not orally pronounce any restitution at sentencing and the jury did not assess any restitution as part of Pruitt’s punishment

. W e conclude based on the record before us, that the trial court’s written judgment varies from its oral pronouncement and the judgment must be modified to delete the restitution. See6 Ette , 559 S.W.3d at 517 ; Taylor , 131 S.W.3d at 500

. Accordingly, we modify the first page of the trial court’s judgment and delete “ $733,964.74 ” in restitution and reflect a restitution amount of “$ 0.” We also modify the third page of the trial court’s judgment unde r “special findings or orders” and delete “$4,512.22 RESTITUTION TO OFFICE OF ATTORNEY GENERAL and $729,452.52 to TML Intergovernmental Risk Pool, (worker’s compensation)[.]” We overrule Pruitt’s sole issue and affirm the trial court’s judgment as modified

. AFFIRMED AS MODIFIED

.

_________________________ W. SCOTT GOLEMON Chief Justice

Submitted on October 3 , 2022 Opinion Delivered October 12, 2022 Do Not Publish Before Golemon , C.J., Kreger and Johnson, JJ.