Billie D. Washington v. State

Opinion issued October 10, 2013

In The

Court of Appeals
For The

First District of Texas
————————————
NO. 01-11-00093-CR
———————————
BILLIE DEAN WASHINGTON, Appellant
V.
THE STATE OF TEXAS, Appellee

On Appeal from the 351st District Court
Harris County, Texas
Trial Court Case No. 1085638

MEMORANDUM OPINION

This is an appeal from an adjudication of guilt and sentence following a

violation of terms of community supervision. We reform the judgment to delete

the assessment of a $10,000 fine and otherwise affirm the judgment.
 BACKGROUND

In November 2008, appellant Billie Dean Washington pleaded guilty to

sexual assault of a child and was placed on deferred adjudication for ten years

pursuant to a plea agreement. In November 2010, the State filed a Motion to

Adjudicate Guilt, based upon several violations of the conditions of his community

supervision, under cause number 1085638. Among these violations alleged was a

failure to comply with the Sex Offender Registration Act and a violation of the

requirement that he commits no offense under the laws of the State.

In this cause number 1085638 (“Adjudication Case”), appellant signed a

Stipulation of Evidence agreeing that he “violated the terms and conditions of my

probation and that the allegations of the attached State’s Motion [to Adjudicate

Guilt] are TRUE.” The stipulation provided that the range of punishment for this

offense is 2–20 years’ confinement, and noted that the stipulation was made

without an agreed recommendation concerning punishment. Finally, as part of the

same document, appellant waived any right to appeal.

In a separate case, c 1284692 (“Registration Case”), appellant was charged

with the offense of violating the Sex Offender Registration Act. In that case, he

also pleaded guilty, but with an agreed sentence of two years’ confinement and no

fine. He waived any right to appeal if the court accepted the terms of the

agreement.

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 The Adjudication Case and the Registration Case were heard together. The

court first questioned appellant about his plea in each case separately, verifying

that the pleas were made voluntarily and because he had actually committed the

acts forming the bases of the State’s claims in each. Then the court moved on to

punishment:

THE COURT: It says here in the paperwork there is no
agreement between you and the State as to what the punishment
should be on the motion to adjudicate. Is that true?
THE DEFENDANT: Yes.
THE COURT: And on the new case it says that you’ve agreed
to 2 years confinement with credit for your back time. Did you agree
to that?
THE DEFENDANT: Yes, sir, I did.
....
THE COURT: On the new case based on your plea of guilty
and on the papers that you filed, I will find you guilty, I will follow the
plea bargain. When I do that, you give up your right to appeal
without my permission on that case. Do you understand that?
THE DEFENDANT: Yes.
THE COURT: All right. So, what do you have to say?
THE DEFENDANT: I just want to apologize to the Court that I
put you-all through this, but I didn’t have another choice but to get out
of the Star Court. Me and one of the staff members got into it. Either
he hurt me or I hurt him. Everybody there were — well, glad that I
work in there and I worked there for the whole 90 days I was there
and didn’t nobody have a problem with it, but this one guy, and he
wanted to come onto me and fight me and I backed down from him,
which is something I don’t usually do, but I did because I was on
probation. After they started telling us that all sex offenders had to
vacate the building at a certain time, that’s when I started wandering,
trying to find a place to go to when I got the opportunity to find a

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 place, I jumped on it. And, really, I did not (inaudible). After I
started looking for a place, I was just so glad to get out of there.
DEFENSE COUNSEL: How is your health?
THE DEFENDANT: My health is really bad. I’ve got a bad
heart. Blood pressure is real bad, bad leg, bad back, and look like I
just falling apart. I take 12 kinds — different kind of medication and I
have them written out back there in my cell block to prove it.
THE COURT: Anything else?
THE DEFENDANT: That’s about it, sir.
THE COURT: Mr. Washington, my only regret in this situation
is that I did not give you life in prison. I’m going to sentence you to
20 years confinement. I’m going to find you guilty. I hope you die in
prison. You raped your granddaughter for years and you’re a
monster, so I’m glad you’re in prison. I hope you never get out.
See the bailiff.
Find it true, revoke his probation, find him guilty, assess 20
years confinement, credit for his back time.

(Emphasis supplied.)

The court signed a Judgment Adjudicating Guilt, specifying as “Terms of

Plea Bargain”: “20 YEARS TDC WITH A $10,000 FINE.” The Judgment also

stated: “APPEAL WAIVED, NO PERMISSION TO APPEAL GRANTED.”

Finally, the trial court indicated on a separate “certification of defendant’s right of

appeal” that “the defendant has waived the right of appeal.”

A. Prior Appeal

Appellant filed a pro se notice of appeal. Citing the appeals waiver that

appellant signed, as well as the trial court’s certification stating that appellant had

waived his right of appeal, we dismissed his appeal for want of jurisdiction.

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Because the record did not support the State’s assertion that the State gave

appellant any consideration for the waiver of his appellate rights with regard to the

Adjudication Case, the Court of Criminal Appeals reversed, holding that the

waiver as to sentencing related to the Adjudication Case was not enforceable and

remanded to this Court for further proceedings. Washington v. State, 363 S.W.3d

589, 589–90 (Tex. Crim. App. 2012).

ISSUES ON APPEALAppellant raises three issues:

1. “The trial court abused its discretion by failing to consider the full
range of punishment before sentencing Mr. Washington to the
maximum available sentence, thereby violating his right to due
process under the Fifth and Fourteenth Amendment to the United
States Constitution and Art. 1, § 10 of the Texas Constitution.”

2. “The trial court abused its discretion by depriving Mr. Washington
of a punishment hearing after adjudicating him, thereby violating
his right to due process under the Fifth and Fourteenth
Amendments to the United States Constitution and Art. 1, § 10 of
the Texas Constitution.”

3. “The trial court erred in adding a $10,000 fine to the judgment
after he had pronounced the sentence in open court as simply “20
years confinement.”

NO PUNISHMENT HEARING

In his second issue, appellant argues that the trial court’s sentencing him

before he adjudicated him, without affording him a separate punishment hearing or

an opportunity to present evidence, denied him his right to due process and entitles

him to a new sentencing hearing. See TEX. CODE OF CRIM. PROC. ANN. art. 42.12,

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§ 5(b) (“After an adjudication of guilt, all proceedings, including assessment of

punishment . . . continue as if the adjudication of guilt had not been deferred”);

Issa v. State, 826 S.W.2d 159, 161 (Tex. Crim. App. 1992) (“[B]ased upon the

statute, the defendant is entitled to a punishment hearing after the adjudication of

guilt, and the trial judge must allow the accused the opportunity to present

evidence.”).

Appellant also contends that this error has not been waived for failure to

object, as he was not given an opportunity to object at the adjudication hearing.

See Issa, 826 S.W.3d at 161 (holding that complaint about the lack of a punishment

hearing, raised for the first time in a motion for new trial, was not waived under the

contemporaneous-objection rule because “the record reflects that the trial court in

one proclamation” revoked defendant’s probation, entered a finding of

adjudication, and sentencing him, which did not afford appellant the “opportunity

to object”). Finally, appellant asserts that he “was not afforded the opportunity to

file a motion for new trial because he was without counsel during the 30-day

period between the judgment . . . [and] timely pro se notice of appeal.” His notice

of appeal stated,

Appellant, being indigent, prays for the setting of APPEAL BOND,
and NOT BEING REPRESENTED BY COUNSEL SINCE
SENTENCING also prays for the APPOINTMENT OF APPELLATE
COUNSEL.

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Appellant acknowledges that there is “no record that trial counsel filed a motion to

withdraw,” but notes that the stipulation signed by appellant and trial counsel

indicated that appellant waived his right to appeal, so trial counsel “had no reason

to believe at the conclusion of the proceedings that [appellant] had any appellate

rights on which to advise him.”

The State responds that appellant waived this argument by failing to make it

in a motion for new trial. It points out that there is no record of appellant’s counsel

withdrawing, and emphasizes the presumption that trial counsel continued to

effectively represent appellant during the window for filing a motion for new trial.

E.g., Oldham v. State, 977 S.W.2d 354, 363 (Tex. Crim. App. 1998) (“When a

motion for new trial is not filed in a case, the rebuttable presumption is that it was

considered by the appellant and rejected.”). While acknowledging that this

presumption is rebuttable, the State asserts that appellant’s arguments fall short of

what is required to demonstrate that he was not effectively represented.

In any event, the State contends, the appellant received all that was required,

i.e., “an opportunity to offer” evidence in mitigation of punishment. Pearson, 994

S.W.2d at 179 (“It is immaterial that the opportunity to present evidence came

before the actual words of adjudication.”). Because appellant was given the

opportunity to speak about why he committed the new violation, i.e., failure to

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report his new address, the State contends that he effectively received a

punishment hearing.

A. Applicable Law

The Texas Code of Criminal Procedure provides that a punishment hearing

shall be conducted following a deferred adjudication of guilt as it would in a case

in which in adjudication had not been deferred.

After an adjudication of guilt, all proceedings, including assessment
of punishment, pronouncement of sentence, granting of community
supervision, and defendant’s appeal continue as if the adjudication of
guilt had not been deferred.
TEX. CODE. CRIM. PROC. ANN. art. 42.12, § 5(b). A defendant must be given the

opportunity to present evidence relevant to punishment before he or she is

sentenced after probation, i.e., community supervision, is revoked. Duhart v.

State, 668 S.W.2d 384, 387 (Tex. Crim. App. 1984); see also Issa, 826 S.W.2d at

162 (“The defendant is entitled to a punishment hearing after the adjudication of

guilt, and the trial judge must allow the accused the opportunity to present

evidence. The trial court in the instant cause erred in not so doing.”)

The Court of Criminal Appeals has taken a pragmatic approach to

procedural challenges relating to punishment-stage evidence, focusing on whether

the defendant has been afforded a full opportunity to present such evidence rather

than focusing on the timing of the introduction of the evidence. See Pearson v.

State, 994 S.W.2d at 176 179 (holding there was no error in assessing punishment

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immediately after adjudicating guilt because, during the adjudication hearing, the

defendant “not only had the opportunity to, but did present punishment evidence”).

Due process objections generally must be made in the trial court to preserve

for appeal. Alexander v. State, 137 S.W.3d 127, 130–31 (Tex. App.—Houston [1st

Dist.] 2004, pet. ref’d) (holding failure to object to trial court of violations of

federal and state due process rights waives appellate review of those claims).

When a record reflects that the trial court sentenced a defendant immediately

following an adjudication of guilt without affording the defendant the opportunity

to present evidence, the defendant’s failure to contemporaneously object may be

excused. Issa, 826 S.W.2d at 161. In such “rare circumstances,” because the

defendant does not have the “opportunity to object to the trial court’s action until

after that action [is] taken,” raising the objection in a “timely filed motion for new

trial [will] preserve the error for appellate review.” Pearson, 994 S.W.2d at 177;

see also Issa, 826 S.W.2d at 161.

B. Analysis

During the portion of the hearing dealing with the Registration Case, the

court told appellant that he would “find him guilty, . . . [and] follow the plea

bargain.” The court admonished, “When I do that, you give up your right to appeal

without my permission on that case. Do you understand that?” Appellant

responded, “Yes.” At that point, the court asked appellant, “So, what do you have

9
to say?” In response, appellant explained why he moved without providing the

required notice about his new address. Appellant’s lawyer asked a follow-up

question about his health, to which appellant responded that his health was “really

bad,” with “a bad heart,” “real bad” blood pressure, and “bad leg, bad back.” The

court asked “Anything else?” Appellant responded: “That’s about it, sir.” The

court then sentenced appellant and the hearing concluded without objection to the

lack of a punishment hearing.

The State relies primarily on Pearson to argue that appellant in this case was

not deprived of an opportunity to put on evidence relevant to punishment. In

Pearson, after the State presented evidence in support of adjudication, the

defendant “was sworn and testified in response to questions from his attorney as to

“anything you would like to address the Court on [sic] regarding the sentencing.”

994 S.W.2d at 178. The trial court in Pearson also specifically inquired about

whether the defendant had additional arguments or evidence related to sentencing.

The State argues that this case is analogous to Pearson, and urges us to

conclude that appellant’s statements about why he moved and his bad health was

all that appellant had to offer here in mitigation of punishment. We disagree. In

Pearson, although the trial court did not hold a separate sentencing hearing after its

adjudication of guilt, the record reflected that—unlike here—the court instructed

the defendant during the hearing as to when it was considering the sentence—as

10
opposed to adjudication—and invited the defendant to offer anything he had

specific to sentencing. 994 S.W.2d at 179. Also unlike this case, the defendant’s

lawyer in Pearson questioned the defendant specifically about what he would like

to address with “regard to sentencing.” Id. Such demarcation is simply not present

on this record.

Appellant asks us to hold that he was not required to preserve his complaint

about the lack of a punishment hearing in the trial court because (1) as in Issa, he

did not have an opportunity to object at the trial, and (2) unlike in Issa, he did not

have an opportunity to file a motion for new trial because he was not represented

by counsel between the date judgment was entered and the date he filed his pro se

notice of appeal (a document in which he asserted that he had not been represented

by counsel since sentencing).

The record here supports appellant’s assertion that the trial court adjudicated

him guilty, imposed his sentence, and then the proceedings were immediately

adjourned. Thus, under Issa, his failure to object at the hearing did not waive his

complaint that he was not afforded a punishment hearing. 826 S.W.2d at 161.

Although a motion for new trial is generally not required in order to present

a point of error on appeal, see Tex. R. App. P. 21.2, a hearing on the motion serves

to develop evidence that is not otherwise in the record. Benson v. State, 224

S.W.3d 485, 490 (Tex. App.—Houston [1st Dist.] 2007, no pet.) (en banc) (citing

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Oldham, 977 S.W.2d at 361). “Motions for new trial have been used primarily for

claims of newly discovered evidence or jury misconduct, and are helpful for

developing evidence of a trial attorney’s ineffective assistance of counsel,

particularly when the issues concern a claim that is premised on a trial attorney’s

failure to act.” Id. Here, filing a motion for new trial could have served both the

purpose of preserving for appeal the complaint that no punishment hearing was

held and provided a means to develop a record of any evidence he may have been

prevented from presenting.

In support of his argument that he did not file a motion for new trial because

he was without counsel during the post-judgment phase, appellant points to his pro

se Notice of Appeal, which stated that he had “not be[en] represented by counsel

since sentencing.” Appellant’s trial counsel did not formally withdraw as counsel,

and there is a long-standing presumption in Texas law that “trial counsel continued

to effectively represent appellant during the window of time for filing a motion for

new trial.” Id. (citing Ward v. State, 740 S.W.2d 794, 798 (Tex. Crim. App.

1987)); see also TEX. CODE CRIM PRO. art. 26.04(j)(2) (“An attorney appointed

under this article shall: . . . represent the defendant until charges are dismissed, the

defendant is acquitted, appeals are exhausted, or the attorney is permitted or

ordered by the court to withdraw as counsel for the defendant after a finding of

good cause is entered on the record . . . .”). Moreover, absent a record showing

12
otherwise, we must apply the presumption that “the reason that a motion for new

trial was not filed was because the appellant considered filing but opted not to file

it.” Benson, 224 S.W.3d at 490 (citing Oldham v. State, 977 S.W.2d at 363)).

Appellant asks in the alternative that we abate the appeal to permit the filing

of an out-of-time motion for new trial. There was a time that this Court routinely

abated for an evidentiary hearing when faced with this situation to allow appellant

to develop facts relevant to rebutting this presumption of effective representation

during this critical stage. E.g., Benson, 224 S.W.3d at 492–494 (describing

abatement procedures). In Benson, however, a majority of this Court sitting en

banc noted the Court of Criminal Appeal’s disapproval of such abatements, and we

thus “abandon[ed] the procedure.” Id. at 495 (citing Jack v. State, 149 S.W.3d

119, 124 (Tex. Crim. App. 2004)). Then we addressed facts essentially identical to

those here, and concluded that the defendant had not effectively rebutted the

presumption that he was effectively represented during the post-judgment period.

Benson, 224 S.W.3d at 497. As here, in Benson (1) the defendant’s trial counsel

did not withdraw from the case or conduct any post-sentencing activity, (2) the

trial court appointed appellant counsel after the expiration of the deadline for a

motion for new trial, and (3) the defendant filed a pro se notice of appeal averring

that he had not been represented by counsel since sentencing. Id. at 496–97.

Given our disposition in Benson, we likewise conclude here that, on this record,

13
appellant has not rebutted the presumption that he was effectively represented by

counsel during the motion-for-new-trial stage.1 Because we presume that he was

represented by counsel, he was required to preserve his complaint about the lack of

a punishment hearing in a motion for new trial and, by failing to, he waived that

complaint for direct appeal.

We overrule appellant’s second point of error.

CONSIDERATION OF FULL RANGE OF PUNISHMENT

In his first issue, appellant argues that the “record demonstrates that the trial

court arbitrarily failed to consider the full range of punishment when sentencing”

him to the maximum punishment available for the underlying crime being

adjudicated, in violation of the Fifth and Fourteenth Amendments to the United

States Constitution and in violation of Article 1, section 10 of the Texas

Constitution. According to appellant, “nothing in the record demonstrates that the

trial judge considered any punishment other than the maximum available, even

though [appellant] spared the court, by his stipulations, a hearing and originally

1
As we did in Benson, we note here that “a defendant may develop a record of
ineffective assistance of trial counsel or lack of counsel during the post-judgment
phase through habeas corpus proceedings.” 224 S.W.3d at 495 n.5. “[W]hen
direct appeal has not provided an adequate record to evaluate a claim which might
be substantiated through additional evidence gathered in a habeas corpus
proceeding, we will not apply the general doctrine that forbids raising a claim on
habeas corpus after it was rejected on appeal.” Jackson v. State, 973 S.W.2d 954,
957 (Tex. Crim. App. 1998); Ex parte Torres, 943 S.W.2d 469, 475 (Tex. Crim.
App. 1997) (en banc).
14
spared the court a trial by pleading guilty to the underlying offense.” Thus,

appellant contends, “[w]hile there is a presumption that the trial court’s actions

were correct, absent a clear showing to the contrary, Thompson v. State, 641

S.W.2d [920], 921 [(Tex. Crim. App. 1982)], in this case the trial judge’s

unrestrained expression of his personal contempt for Mr. Washington and his

assertion that his ‘only regret’ was that he could not sentence him to life in prison,

makes it abundantly clear that the judge never considered the full range of

punishment before pronouncing the maximum sentence.” Appellant acknowledges

that this objection was not made in the trial court, but contends that the complaint

was not waived because he had no opportunity to object and because, in any event,

it would have been clearly futile.

The State urges us to find this complaint waived. As for the merits, the State

responds that there is no indication in the record that the trial court did not consider

the full range of punishment. Unlike other cases finding reversible error, this case

does not involve a situation in which the trial court promised to impose a

maximum sentence if the defendant violated terms of community supervision, and

then imposed that sentence upon revocation. The State also points out that “the

trial court statements of which appellant complains were said after appellant had

the chance to present and did present mitigating evidence.” The State concedes

that if “the trial court had made statements condemning appellant prior to hearing

15
all of the evidence, it would tend to show that the trial court may have already

made up [its] mind on an appropriate sentence.” Here, however, the State claims

that the “trial court comments on the heinous nature of appellant’s crime [came]

only after he ha[d] heard all the evidence,” which merely indicates the trial court’s

opinion on the evidence.

A. Applicable Law

Due process requires that a trial court be neutral and detached. Gagnon v.

Scarpelli, 411 U.S. 778, 786, 93 S. Ct. 1756, 1762 (1973); Jaenicke v. State, 109

S.W.3d 793, 796 (Tex. App.—Houston [1st Dist.] 2003, pet. ref’d).

It is a denial of due process for a trial court to arbitrarily refuse to consider

the entire range of punishment for an offense or to refuse to consider mitigating

evidence and impose a predetermined punishment. E.g., McClenan v. State, 661

S.W.2d 108, 110 (Tex. Crim. App. 1983); Burke v. State, 930 S.W.2d 230, 234

(Tex. App.—Houston [14th Dist.] 1996, pet. ref’d); Howard v. State, 830 S.W.2d

785, 787 (Tex. App.—San Antonio 1992, pet. ref’d); Jefferson v. State, 803

S.W.2d 470, 471 (Tex. App.—Dallas 1991, pet. ref’d); Cole v. State, 757 S.W.2d

864, 865 (Tex. App.—Texarkana 1988, pet. ref’d). In the absence of a clear

showing to the contrary, however, a reviewing court will presume that the trial

court was neutral and detached. Steadman v. State, 31 S.W.3d 738, 741–42 (Tex.

App.—Houston [1st Dist.] 2000, pet. ref’d).

16
 Due process violations have been found when a trial court assesses

punishment at a revocation hearing that is consistent with the punishment it has

previously announced it would assess upon revocation if there is no indication that

the court considered relevant evidence. E.g., Jefferson, 803 S.W.2d at 472 (noting

that, by following through on promise of a certain punishment if defendant violates

conditions of community service, the trial court (1) effectively excludes evidence

relevant to punishment, (2) precludes the court from considering the full

punishment range prescribed by law, and (3) deprives the defendant of a fair and

impartial tribunal). In contrast, if the record reflects that the trial court heard

evidence before imposing its sentence and that the full range was considered,

comments from the court indicating the judge’s negative view of the defendant or

the crime does not amount to a due process violation. Brumit v. State, 206 S.W.3d

639, 645 (Tex. Crim. App. 2006).

The Court of Criminal Appeals has addressed the merits of this type of claim

while expressly declining to decide whether an objection to an alleged failure to

consider the entire punishment range is required to preserve the error on appeal.

Id. at 644–45. We have followed Brumit’s lead by addressing the merits of these

claims on appeal while noting that the question of whether this issue “implicates

the type of systemic error” that can be addressed for the first time on appeal is an

open question. E.g., Avilez v. State, 333 S.W.3d 661, 672 n.19 (Tex. App.—

17
Houston [1st Dist.] 2010, pet. ref’d); McLean v. State, 312 S.W.3d 912, 917 (Tex.

App.—Houston [1st Dist.] 2010, no pet.).

B. Analysis

Appellant contends that the trial court’s comments at sentencing made it

clear that it never considered the full range of punishment and that the court based

its decision on its loathing of appellant and sex offenders generally, rather than on

evidence relevant to adjudication and sentencing in this case. As we have

previously done, we “[a]ssum[e] without deciding that [appellant’s] complaint, if

valid, implicates the type of systemic error that we may address for the first time

on appeal, [and thus] consider whether the trial court’s actions violated

[appellant’s] due process right to an impartial judge.” Avilez, 333 S.W.3d at 672.

Unlike in several of cases finding that the trial court improperly failed to

consider the full range of punishment, we do not have a record here of the earlier

hearing at which the court accepted the parties’ agreement to defer adjudication.

Accordingly, there is no record—or even allegation—that the trial court in this

case made such a promise relating to any future adjudication and sentencing. This

case is thus distinguishable from the cases appellant relies upon in which there is a

record that the trial court promised a particular sentence if the defendant violated

terms of community supervision, and then imposed that sentence with no

18
indication that the full punishment range had been considered. See e.g., Howard,

830 S.W.2d at 788; Jefferson, 803 S.W.2d at 472.

But this case is also distinguishable from the cases relied upon by the State

in which the record shows that, at a minimum, there was a full punishment hearing

and consideration of lesser punishment. For example, the State cites Brumit, a case

in which the defendant complained that certain comments by the court indicated

that the judge was partial and imposed a predetermined sentence. The Court of

Criminal Appeals disagreed, noting both that the trial court in Brumit had heard

extensive evidence related to punishment and that the record affirmatively

indicated that that the court considered the full range of punishment. Brumit, 206

S.W.2d at 645.

As previously explained, given the record here, we cannot agree with the

State that the record clearly indicates that the trial court’s comments “were said

after appellant had the chance to present and did present mitigating evidence.”

The ultimate factual resolution of that issue is, however, dependent upon the

factual resolution of appellant’s complaint that he was not afforded a sentencing

hearing. Because we overruled that complaint based on appellant’s failure to

demonstrate his inability to preserve an adequate record on direct appeal, we

likewise hold that appellant has not met his burden, on this record, of

19
demonstrating that the trial court failed to consider the full range of punishment.

We thus overrule appellant’s first point of error.

DISCREPANCY BETWEEN ORAL PRONOUNCEMENT AND
WRITTEN JUDGMENT
The record reveals that the trial court sentenced appellant to “20 years

confinement, credit for his back time.” The judgment, however, reflects a sentence

of “20 years institutional division, TDCJ” and a $10,000 fine. In his third issue,

appellant complains that it was error for the trial court to enter a judgment

including a $10,000 fine because that fine was not part of the trial court’s oral

pronouncement of his sentence. See Coffey v. State, 979 S.W.2d 326, 328 (Tex.

Crim App. 1998) (“[W]hen there is a variation between the oral pronouncement of

sentence and the written memorialization of the sentence, the oral pronouncement

controls.”). The State concedes this was error and that we should reform the

judgment to conform to the oral pronouncement of sentence. We accordingly

sustain appellant’s third point of error.

CONCLUSION

We reform the judgment to delete the imposition of a $10,000 fine. We

otherwise affirm the trial court’s judgment. Given the procedural posture, our

conclusion should not be understood as approval of the trial court’s comments or

the sentencing procedures followed in this case.

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 Sherry Radack
Chief Justice

Panel consists of Chief Justice Radack and Justices Sharp and Massengale.

Justice Sharp, concurring in judgment only.

Do not publish. TEX. R. APP. P. 47.2(b).

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