COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-08-063-CR
FREDDIE GENE BROWN APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM THE 297TH DISTRICT COURT OF TARRANT COUNTY
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MEMORANDUM OPINION 1
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Appellant Freddie Gene Brown appeals his conviction for aggravated
sexual assault of a child under age fourteen. In a single issue, Brown argues
that because the trial court did not pronounce a restitution order and a
reparation order when it orally pronounced his sentence, the trial court’s
judgment should be reformed to delete the requirements that he pay $1,645.00
1
… See Tex. R. App. P. 47.4.
in restitution and $4,017.50 in reparations. 2 We will modify the judgment to
delete the restitution order and affirm the judgment as modified.
In June 2002, Brown pleaded guilty to the offense of aggravated sexual
assault of a child under age fourteen, and the trial court sentenced him to ten
years’ deferred adjudication community supervision. The State filed its third
amended petition to proceed to adjudication in January 2008, alleging that
Brown had violated several terms and conditions of his community supervision.
Brown pleaded not true to the State’s allegations. After a hearing, the trial
court found that Brown had violated the terms and conditions of his community
supervision as set out in the State’s petition, found him guilty of aggravated
sexual assault of a child under age fourteen, and sentenced him to twenty-five
years’ confinement. When the trial court orally pronounced Brown’s sentence,
it did not order him to pay any amounts of money as restitution or reparations.
The judgment requires Brown to pay “Restitution” in the amount of $1,645.00
and “Reparations” in the amount of $4,017.50.
Brown’s court-appointed appellate counsel filed a brief containing a single
“Issue Presented” (that the restitution and reparation orders should be deleted).3
2
… The State agrees that the judgment should be modified to delete the
requirement that Brown pay restitution.
3
… Brown prays for the same relief.
2
The brief also states that “[i]n all other respects, this brief is submitted for the
purpose of compliance with the requirements of Anders v. California,” and
counsel filed a motion to withdraw. We treated the brief as a traditional brief
on the merits. We deny counsel’s motion to withdraw.
Brown argues that the restitution and reparation orders in the written
judgment are part of his sentence and, therefore, must have been included in
the trial court’s oral pronouncement of sentence. Aggravated sexual assault of
a child under age fourteen is a first-degree felony. Tex. Penal Code Ann.
§ 22.021(e) (Vernon Supp. 2008). An individual adjudged guilty of a first-
degree felony shall be punished by imprisonment in the institutional division for
life or for any term of not more than ninety-nine years or less than five years
and, in addition to imprisonment, may be punished by a fine not to exceed
$10,000. Id. § 12.32 (Vernon 2003).4
A trial court’s pronouncement of sentence is oral, while the judgment,
including the sentence assessed, is merely the written declaration and
embodiment of that oral pronouncement. Tex. Code Crim. Proc. Ann. art.
42.01, § 1 (Vernon 2006); see Taylor v. State, 131 S.W.3d 497, 500 (Tex.
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… Section 22.021 provides that the minimum term of imprisonment is
twenty-five years if the victim is younger than six years of age at the time the
offense is committed. Tex. Penal Code Ann. § 22.021(f). The complainant
here was three years old at the time of the offense.
3
Crim. App. 2004) (stating that a defendant’s sentence must be pronounced
orally in his presence); Ex parte Madding, 70 S.W.3d 131, 135 (Tex. Crim.
App. 2002). When the oral pronouncement of sentence and the written
judgment vary, the oral pronouncement controls. Taylor, 131 S.W.3d at 500;
Madding, 70 S.W.3d at 135 (“[I]t is the pronouncement of sentence that is the
appealable event, and the written sentence or order simply memorializes it and
should comport therewith.” (quoting Coffey v. State, 979 S.W.2d 326, 328
(Tex. Crim. App. 1998))). The rationale for this rule is that “the imposition of
sentence is the crucial moment when all of the parties are physically present at
the sentencing hearing and able to hear and respond to the imposition of
sentence. Once he leaves the courtroom, the defendant begins serving the
sentence imposed.” Madding, 70 S.W.3d at 135. It is a violation of due
process to orally pronounce a sentence and then later, without notice or
hearing, enter a written judgment imposing a harsher sentence. Id. at 136–37.
Regarding restitution, article 42.037(e) of the code of criminal procedure
states in part that “[t]he imposition of the order [of restitution] may not unduly
complicate or prolong the sentencing process.” Tex. Code Crim. Proc. Ann. art.
42.037(e) (Vernon Supp. 2008). In Bailey v. State, the court of criminal
appeals stated of this part of article 42.037(e), “This statement, essentially
including restitution in the ‘sentencing process,’ implies that restitution is
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imposed as part of the original sentence, and that the sentence is not complete
until restitution is imposed.” 160 S.W.3d 11, 15 (Tex. Crim. App. 2004).5 In
Ex parte Cavazos, the court of criminal appeals stated that it has held that
“restitution is punishment.” 203 S.W.3d 333, 338 (Tex. Crim. App. 2006).
In Weir v. State, the court of criminal appeals considered whether costs must
be included in the oral pronouncement of sentence and noted that “the
Legislature and this Court have treated court costs differently from restitution,
which is also punitive.” 278 S.W.3d 364, 366 (Tex. Crim. App. 2009). In
Sauceda v. State, the Third Court of Appeals considered whether a restitution
order is part of the sentence and reasoned in part that “[b]ecause the sentence
is that part of the judgment that orders that the punishment be carried into
execution, it follows that restitution, as punishment, is part of the sentence.”
No. 03-07-00268-CR, 2007 WL 4354455, at *2 (Tex. App.—Austin Dec. 12,
2007, no pet.) (mem. op., not designated for publication); see also Tex. Code
Crim. Proc. Ann. art. 42.02 (Vernon 2006) (stating that “[t]he sentence is that
part of the judgment, or order revoking a suspension of the imposition of a
sentence, that orders that the punishment be carried into execution in the
5
… In a concurring opinion, Judge Cochran referred to a restitution order
as “an order that is pronounced orally in open court as a part of the sentencing
process.” Bailey, 160 S.W.3d at 18 (Cochran, J., concurring) (emphasis
added).
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manner prescribed by law”). In light of the foregoing, we hold that the
$1,645.00 the trial court ordered Brown to pay as restitution is punishment and
part of his sentence and, therefore, must have been included in the trial court’s
oral pronouncement of sentence to be properly included in the written
judgment. We sustain this part of Brown’s issue.
Regarding reparations, included in the clerk’s record is a “Revocation
Restitution/Reparation Balance Sheet – Art. 42.03 SEC. 2, b C.C.P.” Under the
heading, “Administrative Financial Obligations,” the document indicates that
Brown owes $404.75 for “Attorney Fees,” $97.75 for “Lab,” $2,430.00 for
“Probation Fees,” $540.00 for “Psychological Fees,” and $545.00 for “Spec
Fee for Sex Offenders,” for a total of $4,017.50 in “Reparations Owed.” These
“Reparations Owed” are fees owed by Brown as part of his community
supervision. Each of the fees is authorized by statute,6 and article 42.03,
6
… The code of criminal procedure includes as conditions of community
supervision reimbursement to the county for compensation paid to an appointed
defense counsel and reimbursement for the analysis, storage, or disposal of raw
materials, controlled substances, or other materials seized in connection with
the offense. Tex. Code Crim. Proc. Ann. art. 42.12, § 11(a)(11), (19). The
code of criminal procedure allows for a judge granting community supervision
to fix a fee of not less than $25 and not more than $60 per month to be paid
by the defendant during the period of community supervision. Id. art. 42.12,
§ 19(a). And under circumstances similar to this case, the code of criminal
procedure allows a trial court to require as a condition of community
supervision that the defendant attend psychological counseling sessions for sex
offenders with an individual or organization that provides sex offender
treatment or counseling. Id. art. 42.12, § 13B(a)(2).
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section 2(b) states that “[i]n all revocations of a suspension of the imposition
of a sentence the judge shall enter the restitution or reparation due and owing
on the date of the revocation,” which is what happened in this case. Tex. Code
Crim. Proc. Ann. art. 42.03, § 2(b) (Vernon Supp. 2008). We hold that the
reparations, or fees, owed by Brown are not punishment and part of his
sentence and, therefore, did not have to be included in the trial court’s oral
pronouncement of sentence to be properly included in the written judgment.
See Revia v. State, No. 09-07-00068-CR, 2007 WL 2446099, at *1–2 (Tex.
App.—Beaumont Aug. 29, 2007, no pet.) (mem. op., not designated for
publication) (holding that costs and fees did not have to be orally pronounced
because they were not part of the punishment). We overrule the remainder of
Brown’s issue.
We modify the part of the judgment adjudicating Brown’s guilt to delete
the requirement that Brown pay restitution in the amount of $1,645.00. As
modified, we affirm the trial court’s judgment. See Tex. R. App. P. 43.2(b).
PER CURIAM
PANEL: MEIER, LIVINGSTON, and DAUPHINOT, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: July 2, 2009
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