### NUMBER 13 - 12 - 00 069 - CR 

## COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI

- 

## EDINBURG

DARRELL LYNN MILLER , Appellant,

v. THE STATE OF TEXAS , Appellee.

On appeal from the 252nd District Court of Jefferson County, Texas.



## MEMORANDUM OPINION 1


### Before Justices Rodriguez, Benavides , and Perkes Memorandum Opinion by Justice Perkes Appellant Darrell Lynn Miller appeals the trial court’s judgment revoking his deferred

- adjudication community supervision, arguing by three related issues that the trial court’s inclusion of $750.00 in the “ administrative costs ” in the Judgment Adjudicating Guilt was improper . Appellant speci fically complains that the trial court : (1) violated

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 T EX

. G OV ' T C ODE A NN

. § 73.001 (West 2005).2

article 42.03 of the Texas Code of Criminal Procedure by including a fine in the judgment
without first orally pronouncing it in the appellant’s presence ; 2 (2) erred by including the fine as an adminis trative fee in the judgment without orally pronounc ing ; and (3) erred because the evidence was insufficient to suppo rt the fine

. 3 The State concedes error. We affirm , as modified.
I. BACKGROUND 4 Appellant pleaded guilty to the offense of aggravated sexual assault of a child, a first

- degree felony. See T EX

. P ENAL C ODE A NN . § 22.021 (West Supp. 2011). The trial court deferred adjudication of the offense, placed appellant on community

- supervision for ten years, and imposed a $750.00 fine. The State subsequently moved to revoke appellant’s community supervision, alleging violations of five community

- supervision conditions. After appellant pleaded “true” to four of the violations, the trial court r evoked his community supervision and assessed punishment at sixty

- five years’ confinement in Texas Department of Criminal Justice, Institutional Division. During its oral pronouncement of appellant’s sentence, the trial court did not

assess a fine. Nonet heless, t he trial court’s judgment includes appellant’s sixty

- five year
sentence and $5,440.00 in administrative fees , plus $1,365.00 in court costs , for a total of $6,805. The Revocation Restitution/Reparation Balance Sheet for appellant shows that the $ 6,805.00 includes a $750.00 fine

.

2 Article 42.03 section 1(a) states , in relevant part , that a “sentence shall be pronounced in the defendant’s presence.” T EX

. C RIM

. C ODE P ROC

. A NN . art

. 42.03 §1(a) (West Supp. 2011).

3 We reordered appellant’s three issues for organizational purposes.

4 Because this is a memorandum opinion and the parties are familiar with the facts, we will not recite them here except as necessary to advise the parties of the Court's decision and th e basic reasons for it. See T EX

. R. A PP

. P. 47.4.3 II. UNANNOUNCED FINE By three related issues, appellant contends that it was improper for the trial court to include the $750.00 fine in the judgment

. Although the judgment does not specifically
itemize a $750.00 fine, appellant argues that the “ administrative fe es ” include a $750.00
fine because the $5,440.00 in “administrative fees” and the $1,365.00 in “court costs” cumulate to equal $6,805.00, which is the total balance for “ADMINISTRATIVE FINANCIAL OBLIGATIONS” recorded on the Balance Sheet. Given that the Balance Sheet specifically includes a $750.00 “ fine, ” appellant avers that the “ administrative fees ” improperly include d an unannounced fine

. The State agrees that the trial court erred by including a $750.00 fine in the administrative fee calculation because there was no mention of the fine in the trial court’s oral pronouncement of the sentence

. Both parties ask this court to modify the judgment by deleting $750.00 from the administrativ e fees in the judgment

. It is well

- settled law that if a conflict between the oral pronouncement of a sentence and the written judgment arises, the oral pronouncement controls. See, e.g., Taylor v. State , 131 S.W.3d 497, 502 (Tex. Crim. App. 2004); Coffey v. State , 979 S.W.2d 326, 328 (Tex. Crim. App. 1998). Equally established is the rule of law that a judgment of adjudication sets aside an antecedent order deferring adjudication, including any fines imposed therein. See, e.g., Taylor , 131 S.W.3d at 501

– 02; Abron v. State , 997 S.W.2d 281, 282 (Tex. App.

— Dallas 1998, pet. ref’d). After reviewing the record, we conclude that the administrative fees in the trial court’s judgment i mproperly include s a $750.00 fine4

that the trial court did not referenc e in its oral pronouncement of appellant’ s sentence. We sustain appellant’s sole issue.
III. REFORMATION OF JUDGMENT 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
T EX

. R. A PP

. P . 43.2(b); 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 revocation hearing],
the court of appeals was correct to delete the fine from the judgment.”); Alexander v. State , 301 S.W.3d 361, 364 (Tex. App.

— Fort Worth 2009, no pet.) (reforming judgment to delete the amount of restitution that was not orally pronounced at the conclusion of the defendant’s revocation hearing).
IV. CONCLUSION We reform the judgment to delete a total sum of $750.00 from the “Administrative Fees” included in the judgment. We affirm the judgment , as modified.

GREGORY T. PERKES Justice Do not publish. T EX

. R. A PP

. P. 47.2(b). Delivered and filed the 28th day of March , 201 3

.