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In The

Court of Appeals

Ninth District of Texas at Beaumont

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NO. 09-21-00151-CR

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BRADLEY JOSEPH PRUITT, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the 356th District Court

Hardin County, Texas

Trial Cause No. 25286 

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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 jury 
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verdict finding 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 proceeded 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 returned 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 indicates 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, Pruitt 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 the trial court failing 

1On 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. 
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to orally pronounce restitution as part of his punishment. TheState 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 the contention 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 sentence 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, when the oral pronouncement of sentence and the written 

judgment vary, the oral pronouncement controls. Id.; Ex parte 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 thisrule but noting an exception where the

trial court’s oral pronouncement conflicts with the jury’slawful verdict that has been

read aloud in the defendant’s presence).
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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, 2009WL1905231, at *2 (Tex. App.—

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

not so announced,the defendantmay 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 medical 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 for 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 balance between the 

defendant’s right to be heard and the public policy that favors granting restitution to 
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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 make restitution 

to any victim); Hanna v. State, 426 S.W.3d 87, 91 (Tex. Crim. App. 2014)(citations 

omitted). Pruitt also contendsthat this Court may vacate the restitution 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 Court distinguished its facts from other cases in which neither the parties 

nor the judge ever mentioned restitution during the sentencing hearing or as part of 

the oral pronouncement of sentence. Id. at 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 orders

restitution in its written judgment but not 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. We 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. See
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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 under “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.

AFFIRMEDAS MODIFIED.

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 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.