COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-15-00370-CR
ANDRE KIMBLE APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM CRIMINAL DISTRICT COURT NO. 3 OF TARRANT COUNTY
TRIAL COURT NO. 1396543D
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MEMORANDUM OPINION1
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A jury convicted Appellant Andre Kimble of felony assault of a family or
household member and assessed his punishment at fifteen years’ confinement
and a $4,000 fine. The trial court read the punishment verdict aloud, including
the period of confinement and fine, polled the jury, “receive[d] the verdict as
unanimous[,] and order[ed] it filed amongst the papers in this cause.” The trial
1
See Tex. R. App. P. 47.4.
court then orally pronounced the sentence but omitted any mention of a fine.
The trial court included both the confinement period and the fine in the written
judgment. In his sole issue, Appellant contends that because the trial court did
not pronounce the fine orally, the fine must therefore be deleted from the written
judgment. Because the jury imposed the fine, the trial court accepted their
verdict as unanimous and ordered it filed in the trial court record, and the written
judgment corresponds with both the written jury verdict and the jury verdict
announced in court, received by the trial court, and ordered filed in the trial court
record, we disagree.
The Texas Court of Criminal Appeals has provided the general rule
regarding conflicts between written judgments and oral pronouncements of
sentence:
A defendant’s sentence must be pronounced orally in his
presence. The judgment, including the sentence assessed, is just
the written declaration and embodiment of that oral pronouncement.
When there is a conflict between the oral pronouncement of
sentence and the sentence in the written judgment, the oral
pronouncement controls.2
As part of a defendant’s punishment and sentence,3 a fine must be orally
pronounced in the defendant’s presence.4
2
Taylor v. State, 131 S.W.3d 497, 500 (Tex. Crim. App. 2004) (footnotes
omitted); see also Coffey v. State, 979 S.W.2d 326, 328 (Tex. Crim. App. 1998).
3
See Gipson v. State, 428 S.W.3d 107, 109 (Tex. Crim. App. 2014).
4
Taylor, 131 S.W.3d at 500; see Tex. Code Crim. Proc. Ann. art. 42.03
§ 1(a) (West Supp. 2015).
2
But if the oral pronouncement of sentence is merely ambiguous, as
opposed to explicitly conflicting with the written judgment, “the jury’s punishment
verdict, the court’s pronouncement, and the written judgment should all be read
together in an effort to resolve the ambiguity.”5 This court-created exception
harmonizes the court-created general construct elevating oral pronouncements
with the otherwise conflicting protective ladder of common law, statutes, and
constitutional provisions placing valid jury verdicts on punishment beyond a trial
judge’s reach.
Article 37.01 of the code of criminal procedure provides that a “verdict” is
“a written declaration by a jury of its decision of the issue submitted to it.”6 Article
37.04 provides that an agreed verdict “shall be read aloud by the judge, . . . [and
i]f in proper form and no juror dissents therefrom, and neither party requests a
poll of the jury, the verdict shall be entered upon the minutes of the court.”7
Article 37.05 clarifies that when all polled jurors confirm that it is in fact their
verdict, “the verdict shall be entered upon the minutes.”8 Article 37.06 requires
that a defendant in a felony case “be present when the verdict is read unless his
5
Hernandez v. State, No. 02-12-00392-CR, 2014 WL 1510093, at *2–3
(Tex. App.—Fort Worth Apr. 17, 2014, no pet.) (mem. op., not designated for
publication); Aguilar v. State, 202 S.W.3d 840, 843 (Tex. App.—Waco 2006, pet.
ref’d).
6
Tex. Code Crim. Proc. Ann. art. 37.01 (West 2006).
7
Id. art. 37.04.
8
Id. art. 37.05.
3
absence is wilful or voluntary.”9 Article 42.01 provides in relevant part that “[t]he
sentence served shall be based on the information contained in the judgment”10
and that when the jury assessed punishment, the judgment shall provide “that the
defendant be punished in accordance with the jury’s verdict.”11
More than thirty years ago, the Texas Court of Criminal Appeals discussed
our constitutional right to trial by jury and the trial court’s powerlessness to
change valid jury verdicts on punishment:
The guarantee of a right to trial by jury in the Sixth
Amendment, United States Constitution, is made applicable to the
States by the Fourteenth Amendment. Article I, § 10 of the Texas
Constitution provides that an accused in a criminal prosecution shall
have a speedy public trial by an impartial jury. Article I, § 15 of the
said State Constitution provides that the right of trial by jury shall
remain inviolate. When the jury is to assess punishment . . . , the
jury must assess in their verdict the punishment intended to be
imposed where it is not otherwise fixed by law. Under these
circumstances assessment of punishment is exclusively within the
province of the jury.
It has been fundamental that a trial judge does not have the
authority to receive a jury’s verdict and then refuse to abide by it, nor
change the verdict in any material part, nor give effect to part of the
verdict and ignore some other part and enter another and different
judgment from that called for by the jury’s verdict.12
9
Id. art. 37.06.
10
Id. art. 42.01, § 1 (West Supp. 2015).
11
Id. art. 42.01, § 1(8).
12
Ex parte Johnson, 697 S.W.2d 605, 612 n.3 (Tex. Crim. App. 1985)
(citations omitted).
4
“Courts have no power to change a jury verdict unless it is with the jury’s
consent and before they have dispersed.”13 “If a jury assesses a punishment
authorized by the law, the trial court has no power to change that punishment
verdict and has very little authority to do anything other than to impose that
sentence.”14
It is true that article 42.03 of the code of criminal procedure provides that
the “sentence shall be pronounced in the defendant’s presence,”15 but with a
bench trial, the trial judge’s oral statements on “the record [are] the only
comparable source that may be consulted to learn the decision of the fact
finder.”16 On the other hand, when the jury determines punishment, “the written
verdict provides the basis for reforming an erroneous recitation in judgment and
sentence.”17
In this case, the trial court’s oral pronouncement is ambiguous because it
does not mention the $4,000 fine that the trial court had just accepted and
ordered recorded as part of the jury verdict; the oral pronouncement does not
13
Ex parte McIver, 586 S.W.2d 851, 854 (Tex. Crim. App. [Panel Op.]
1979).
14
State v. Dudley, 223 S.W.3d 717, 721 (Tex. App.—Tyler 2007, no pet.).
15
Tex. Code Crim. Proc. Ann. art. 42.03, § 1(a) (West Supp. 2015).
16
Milczanowski v. State, 645 S.W.2d 445, 447 (Tex. Crim. App. 1983).
17
Id.
5
impose the same fine, a “zero” fine, or a greater or lesser fine.18 But considering
together the facts that before the trial court formally pronounced sentence, the
trial court
read aloud the jury’s verdict assessing punishment at fifteen years’
confinement and a $4,000 fine,
polled the jury,
received the unanimous verdict, and
ordered it filed in the trial court record,
along with the fact that the verdict read and accepted by the trial court in the
reporter’s record matches the written jury verdict as well as the trial court’s
written judgment found in the clerk’s record, any potential ambiguity is resolved in
favor of the jury verdict.19
We overrule Appellant’s sole issue and affirm the trial court’s written
judgment.
/s/ Lee Ann Dauphinot
LEE ANN DAUPHINOT
JUSTICE
PANEL: LIVINGSTON, C.J.; DAUPHINOT and GARDNER, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: May 12, 2016
18
See Hernandez, 2014 WL 1510093, at *3.
19
See Taylor, 131 S.W.3d at 500; see also Aguilar, 202 S.W.3d at 843.
6