ANTHONY LASHELL BRYANT, Appellant v. THE STATE OF TEXAS, Appellee

Reformed, and Affirmed as Reformed, and Opinion Filed September 30, 1996
 
 
S
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-92-01409-CR
............................
ANTHONY LASHELL BRYANT, Appellant
V.
THE STATE OF TEXAS, Appellee
..............................................................
On Appeal from the 204th District Court
Dallas County, Texas
Trial Court Cause No. F91-39256-TQ
..............................................................
O P I N I O N
Before Justices Ovard, Chapman, and Morris
Opinion By Justice Ovard
        Anthony Lashell Bryant appeals his conviction for burglary of a habitation. The trial court accepted appellant's guilty plea and orally sentenced him to ten years' imprisonment. The trial court's written judgment reflects a sentence of ten years' confinement and a $750 fine. In two points of error, appellant contends that his guilty plea was involuntary because the trial court did not inform him of the possible consequences of a probation violation as required by code of criminal procedure article 42.12, section 5(a) and the judgment should be reformed to delete the $750 fine. As reformed, we affirm the trial court's judgment.
PROCEDURAL BACKGROUND
        Appellant was indicted for burglary of a habitation. Pursuant to a plea bargain agreement for deferred adjudication, appellant pleaded guilty before a magistrate to the offense as alleged in the charging instrument. The magistrate found the evidence substantiated appellant's guilt. The trial court adopted the magistrate's findings, placed appellant on deferred adjudication probation, and assessed a fine of $750.
        Later, the State moved to adjudicate appellant's guilt. Appellant pleaded not true to the allegations in the State's motion. After a hearing, the trial court adjudicated appellant's guilt and orally assessed a ten-year sentence.
ARTICLE 42.12 INFORMATION
        In his first point of error, appellant contends that his guilty plea was involuntary because the trial court did not inform him of the possible consequences of a probation violation as required by article 42.12, section 5(a) of the Texas Code of Criminal Procedure. See Act of May 29, 1989, 71st Leg., R.S., ch. 785, § 4.17, 1989 Tex. Gen. Laws 3471, 3500, amended by Act of May 29, 1993, 73rd Leg., R.S., ch. 900, § 4.01, 1993 Tex. Gen. Laws 3586, 3719, amended by Act of May 26, 1995, 74th Leg., R.S., ch. 256, § 2, 1995 Tex. Gen. Laws 2190, 2191, amended by Act of May 29, 1995, 74th Leg., R.S., ch. 318, § 53, 1995 Tex. Gen. Laws 2734, 2750 (current version at Tex. Code Crim. Proc. Ann. art. 42.12, § 5(a) (Vernon Supp. 1996)). The State asserts that the trial court's failure to inform appellant about the consequences of a probation violation did not render his guilty plea involuntary. We agree.
        The applicable version of article 42.12, section 5(a) required the trial court to inform the defendant of possible consequences of a probation violation. Act of May 29, 1989, 71st Leg., R.S., ch. 785, § 4.17, 1989 Tex. Gen. Laws 3471, 3500 (amended 1993 and 1995). The possible consequences of a probation violation are set out in article 42.12, section 5(b). See Act of May 29, 1989, 71st Leg., R.S., ch. 785, § 4.17, 1989 Tex. Gen. Laws 3471, 3501, amended by Act of May 29, 1993, 73rd Leg., R.S., ch. 900, § 4.01, 1993 Tex. Gen. Laws 3586, 3719, amended by Act of May 29, 1995, 74th Leg., R.S., ch. 318, § 53, 1995 Tex. Gen. Laws 2734, 2750 (current version at Tex. Code Crim. Proc. Ann. art. 42.12, § 5(b) (Vernon Supp. 1996)). Although this informational requirement is mandatory, the trial court's failure to admonish a defendant before accepting his plea in a misdemeanor case does not render his plea involuntary. Price v. State, 866 S.W.2d 606, 613 (Tex. Crim. App. 1993).
        This Court recently concluded that the trial court's failure to give the information required by article 42.12, section 5(a) in a felony case cannot render a defendant's guilty plea involuntary. Brown v. State, 915 S.W.2d 533, 538 (Tex. App.--Dallas 1995, pet. granted). We determined that, because the legislature placed the "informational" requirement after the "acceptance of the plea" language, it did not intend the informational requirement to be a condition precedent to a voluntary plea. Brown, 915 S.W.2d at 537; see also Tex. Code Crim. Proc. Ann. art. 42.12, § 5(a) (Vernon Supp. 1996). FN:1
        In this appeal, appellant raises the same argument we addressed in Brown. Accordingly, we overrule appellant's first point of error. See Brown, 915 S.W.2d at 538.
REFORMATION OF JUDGMENT
        In his second point of error, appellant contends the trial court's judgment erroneously includes a $750 fine. He asserts that, after adjudicating appellant guilty, the trial court orally assessed punishment at ten years' imprisonment, but did not assess a fine. Accordingly, he argues, this Court should reform the judgment to delete the $750 fine.
        The State responds that the fine is properly included in the judgment because the trial court assessed the $750 fine in the order placing appellant on deferred adjudication probation and ordered the fine to be paid, not probated. The fine appearing in the judgment, the State argues, is merely a reassessment of the fine previously assessed.
        The code of criminal procedure identifies two different types of probation: (1) probation during which criminal proceedings are deferred without an adjudication of guilt, and (2) probation after conviction but during which the sentence is probated and the imposition of sentence is suspended in whole or in part. Act of May 29, 1989, 71st Leg., R.S., ch. 785, § 4.17, 1989 Tex. Gen. Laws 3471, 3498, amended by Act of May 29, 1993, 73rd Leg., R.S., ch. 900, § 4.01, 1993 Tex. Gen. Laws 3586, 3716, 3717 (current version at Tex. Code Crim. Proc. Ann. art. 42.12, § 2 (2) (Vernon Supp. 1996)). Deferred adjudication is not a conviction and no punishment is assessed at the time the defendant is placed on deferred adjudication probation. Weed v. State, 891 S.W.2d 22, 24-25 (Tex. App.--Fort Worth 1995, no pet.). Article 42.12, section 5(b) provides that after adjudication of guilt, all proceedings, including assessment of punishment and pronouncement of sentence, continue as if the adjudication had not been deferred. Act of May 29, 1989, 71st Leg., R.S., ch. 785, § 4.17, 1989 Tex. Gen. Laws 3471, 3501 (amended 1993 and 1995). Article 42.03, section 1(a) requires a trial judge to pronounce sentence in a defendant's presence. Tex. Code Crim. Proc. Ann. art. 42.03, § 1(a) (Vernon Supp. 1996). Taken together, these statutes require the trial court to pronounce sentence in a defendant's presence after his guilt is adjudicated, even if adjudication had previously been deferred.
        The State relies on Fair v. State, 710 S.W.2d 188 (Tex. App.--Corpus Christi 1986, no pet.). In Fair, the defendant was convicted and sentenced to ten years' imprisonment and a $2000 fine. The penitentiary term was probated. The Fair court held that the trial court did not err in including in the judgment the fine that was originally assessed, but not probated. Fair is distinguishable. There, the fine in the judgment was properly assessed at the time the defendant was sentenced and, therefore, properly included in the judgment. Here, the fine was assessed at the time appellant was placed on deferred adjudication probation. Appellant was not convicted or sentenced at the time he was placed on deferred adjudication probation. The $750 fine was assessed as a condition of probation. At the adjudication hearing, the trial court heard evidence, adjudicated appellant's guilt, and, in appellant's presence, sentenced him to ten years' confinement. The trial court did not assess a fine or order appellant to pay a fine after adjudicating appellant's guilt.
        The State also contends that the judgment should not be reformed because written orders in the record prevail over oral pronouncements made by the trial judge. This general rule of law is not applicable here because when a written judgment fails to conform to the oral pronouncement of punishment, the judgment should be reformed to reflect the record of the proceedings. Banks v. State, 708 S.W.2d 460, 462 (Tex. Crim. App. 1986). An appellate court has the power and authority to reform and correct a judgment when it has the necessary information to do so. Tex. R. App. P. 80(b)(2); Knight v. State, 581 S.W.2d 692, 694 (Tex. Crim. App. [Panel Op.] 1979).
        When appellant was adjudicated, the proceeding was to continue as if he had never been placed on deferred adjudication probation. The trial court was required to observe the appropriate rules of procedure, including the requirement that the sentence be pronounced in appellant's presence. Because the written judgment includes a $750 fine that was not pronounced after adjudication and in appellant's presence, we hold that the judgment should be reformed to delete the fine. Tex. R. App. P. 80(b). We sustain appellant's second point of error.
        We reform the trial court's judgment to delete the $750 fine. We affirm the trial court's judgment as reformed.
 
 
                                                          
                                                          JOHN OVARD
                                                          JUSTICE
Do Not Publish
Tex. R. App. P. 90
921409F.U05
 
FN:1 The legislature recently amended section 5(a). See Act of May 29, 1995, 74th Leg., R.S., ch. 318, § 53, 1995 Tex. Gen. Laws 2734, 2750. The new version of the statute specifies that the court must inform the defendant of the consequences of violating his probation after the court grants the defendant deferred adjudication. Id.
File Date[09-30-96]
File Name[921409F]