### IN THE TENTH COURT OF APPEALS
No. 10

- 19

- 00134

- CR
GARY LAYNE SMITH , Appellant
v.
THE STATE OF TEXAS , Appellee

From the 66th District Court Hill County, Texas Trial Court No. 39,230

MEMORANDUM OPINION

Appellant, Gary Layne Smith, pled guilty to unlawful possession of a controlled substance, morphine, in an amount greater than one gram but less than four grams. See

T EX

. H EALTH & S AFETY C ODE § 481.115(c). Pursuant to a plea bargain, the trial court deferred adjudication of guilt and placed Smith on community supervision for five years. Subsequently , the State filed an application to adjudicate guilt, and a fter a hearing, the
trial court found all but three of the allegations contained in the State’s application to be

true. The trial court found Smith guilty and sentenced him to seven and one - h alf y ears in prison

. Because we sustain Smith’s issues on appeal, we modify the trial court’s judgment and affirm it as modified.Smith v. State Page 2 R ESTITUTION In his first two issues, Smith complains that the trial court erred by requiring him to repay extradition expenses and unpaid community

- supervision fees

. In its judgment,

t he trial court specifically assessed these two amounts as “ restitution ” . Restitution is part of punishment. See Burt v. State , 445 S.W.3d 752, 756 (Tex. Crim. App. 2014)

. And b ecause
it is part of punishment , restitution must be pronounced on the record as part of the

sentence. Alexander v. State , 301 S.W.3d 361, 364 (Tex. App.

— Fort Worth 2009 , no pet. ) ( acknowledged b y Burt v. State , 445 S.W.3d 752, 76 0 n.33 (Tex. Crim. App. 2014 ))

. In this
case, i t was not. Therefore , the trial court’s judgment is erroneous

. Issues one and two are sustained , an d the judgment is modified to delete the

restitution amounts of $516.35 and $562.00

. 1

T RUE OR N OT T RUE In his third issue, Smith contends the judgment recites that he pled “true” to the allegations contained in the State’s application to adjudicate guilt when he pled “not
true.” The record reflects that a t the March 27, 2019 , revocation hearing, Smith ple d “not
true” to all of the State’s allegations. However, the judgment adjudicating guilt mistakenly indicates that Smith pled “true” to allegations 1, 2, 3, 4, 8, 9, 10, 11, and 12. We agree with Smith that the judgment should be modified.

A court of appe als has authority to correct or reform a judgment to make the record speak the truth when it has information to do so

. See T EX

. R. A PP

. P . 43.2(b); see also Bigley v. State , 865 S.W.2d 26, 27

- 28 (Tex. Crim. App. 1993) (interpreting former Rule

1 To the extent that a certified bill of cost in this case has been prepared, we also modify it by striking the assessment of these amounts. See e.g ., Bryant v. State , No. 10

- 18

- 00352

- CR, 2021 Tex. App. LEXIS 6000, at *3 (Tex. App.

— Waco July 28, 2021 , no pet. h.) (publish)

.Smith v. State Page 3 of Appellate Procedure 80, the precursor to rule 43.2) ; French v. State , 830 S.W.2d 607, 609 (Tex. Crim. App. 1992) ; Asberry v. State , 813 S.W.2d 526, 531 (Tex. App.

— Dallas 1991 , pet.
ref’d )

. Accordingly , Smith’s third issue is sustained, and we modify the trial court’s judgment adjudicating guilt to reflect a ”NOT TRUE” entry under the heading, “Plea to

Motion to A djudicate. ”

C ONCLUSION Because each of Smith’s issues on appeal have been sustained , the trial court’s judgment adjudicating guilt is modified to: (1) eliminate restitution as ordered for the
extradition and unpaid community supervision fees ; 2 and (2) reflect a ”NOT TRUE” entry under the heading, “Plea to Motion to A djudicate. ” T he trial court’s judgment is , therefore, affirmed as modified.

TOM GRAY Chief Justice Before Chief Justice Gray, Justice Johnson, and Justice Wright 3 (Justice Johnson dissenting and concurring ) Affirmed as modified Opinion delivered and filed August 31 , 2021 Do not publi sh [CR25]

2 To the extent a certified bill of costs exists which also includes these fees, the extradition fees in the amount of $516.35 and the unpaid community supervision fees in the amo unt of $562.00 are stricken

3 The Honorable Jim R. Wright, Senior Chief Justice (Retired) of the Eleventh Court of Appeals, sitting by assignment of the Chief Justice of the Texas Supreme Court. See T EX

. G OV ' T C ODE §§ 74.003, 75.002, 75.003.