11th Court of Appeals
Eastland, Texas
Opinion
Edmundo Bustos Ramirez
Appellant
Vs. No. 11-02-00309-CR -- Appeal from Dallas County
State of Texas
Appellee
The jury convicted Edmundo Bustos Ramirez of the offense of assault, a class A misdemeanor. The trial court assessed punishment at confinement for 330 days and a fine of $200, but the court suspended the imposition of appellant=s sentence and placed him on community supervision for a term of 11 months and 21 days. We modify the judgment and dismiss the appeal.
The record shows that, after the jury convicted him, appellant and the State entered into an agreement regarding punishment. In exchange for the State=s recommendation, appellant agreed among other things to waive his right to an appeal. During the sentencing hearing, the following exchange occurred:
[PROSECUTOR]: No, Your Honor, 330 days exposure probated for 11 months and 21 days and a $200 fine as well as a conditions (sic) to include B
[DEFENSE COUNSEL]: Waive appeal, enter counseling, affirmative finding of family violence and victim impact panel.
THE COURT: Okay. Mr. Ramirez, the Court is going to sentence you to 330 days probated for 11 months and 21 days and a $200 fine and court costs....Is it my understanding that you are waiving your right to appeal, [appellant]?
THE DEFENDANT: Yes, ma=am.
THE COURT: And you are entering this freely and voluntarily. You understand that means that this case will not go up on appeal and this will be the final judgment?
THE DEFENDANT: Yes.
The record clearly shows that appellant waived his right to appeal in exchange for the recommendation from the State and that the trial court assessed punishment in accordance with that recommendation. The circumstances of this case are undistinguishable from those in Blanco v. State, 18 S.W.3d 218 (Tex.Cr.App.2000), where the Court of Criminal Appeals held that the defendant waived his right to appeal. See also Monreal v. State, 99 S.W.3d 615 (Tex.Cr.App. 2003)(upholding a nonnegotiated waiver of appeal). Accordingly, we hold that appellant waived his right to appeal in this case and that the appeal should be dismissed.
Although the reporter=s record from the sentencing hearing shows that the trial court assessed punishment at confinement for 330 days, probated for 11 months and 21 days, plus a fine of $200, the judgment inaccurately reflects the term of community supervision as 11 months and 22 days. When the oral pronouncement of sentence and the written judgment vary, the oral pronouncement controls. Ex parte Madding, 70 S.W.3d 131, 136 (Tex.Cr.App.2002); Coffey v. State, 979 S.W.2d 326, 328 (Tex.Cr.App.1998). Such a judgment may be corrected to reflect the trial court=s oral pronouncement. Banks v. State, 708 S.W.2d 460, 462 (Tex.Cr.App.1986); Milczanowski v. State, 645 S.W.2d 445, 447 (Tex.Cr.App.1983). The true finding of the trial court as pronounced in open court was that appellant be placed on community supervision for a term of A11 months and 21 days.@ Consequently, we modify the judgment to show the precise punishment as pronounced by the trial court in open court.
The judgment of the trial court is modified to reflect the term of community supervision of A11 months and 21 days,@ and the appeal is dismissed.
W. G. ARNOT, III
CHIEF JUSTICE
June 18, 2003
Do not publish. See TEX.R.APP.P. 47.2(b).
Panel consists of: Arnot, C.J., and
Wright, J., and McCall, J.