ALFREDO MANNING, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRM as MODIFIED and Opinion Filed July 20, 2007
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-06-00422-CR
............................
ALFREDO MANNING, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the Criminal District Court
Dallas County, Texas
Trial Court Cause No. F02-00233-RH
.............................................................
OPINION
Before Justices Moseley, O'Neill, and FitzGerald
Opinion By Justice O'Neill
        Alfredo Manning waived a jury and pleaded guilty to criminally negligent homicide. See Tex. Pen. Code Ann. § 19.05 (Vernon 2003). Pursuant to a plea agreement, the trial court deferred adjudicating guilt, placed appellant on five years' community supervision, and assessed a $1500 fine and $4952.36 in restitution. The State later moved to proceed with adjudication of guilt, alleging appellant violated the terms of his community supervision. At a hearing, the trial court granted the motion, adjudicated appellant guilty, and assessed punishment at ten years' imprisonment. In two points of error, appellant contends the trial court's judgment should be modified to delete the restitution order and fine, and alternatively, the restitution amount is incorrect. We affirm the trial court's judgment as modified.         Appellant argues that because the trial court did not orally pronounce a fine or restitution order when it adjudicated his guilt, the written judgment should be modified to delete the fine and restitution. In the alternative, appellant asks this court to modify the restitution order to reflect amounts he had already paid. The State responds that because the restitution order is not a part of the sentence, it is properly included in the written judgment. The State concedes the trial court's judgment should be modified to delete the fine and reflect the correct amount of restitution after deducting payments made while appellant was on community supervision.
        The trial judge orally pronounced sentence at ten years' imprisonment after adjudicating appellant guilty, but did not orally pronounce a fine or restitution order. The trial court's written judgment recites a $2.00 fine and $4952.36 restitution. Appellant is correct in his assertion that the trial court must orally pronounce the sentence is his presence. See Tex. Code Crim. Proc. Ann. art. 42.03, § 1(a) (Vernon 2006). And, that when a conflict exists between the oral pronouncement of the sentence and the sentence in the written judgment, the oral pronouncement controls. See Taylor v. State, 131 S.W.3d 497, 500 (Tex. Crim. App. 2004). Thus, we sustain appellant's first point of error as to the fine. However, restitution is not a part of the sentence. The sentence is that part of the judgment which orders the punishment to be carried into execution in the manner prescribed by law. See Tex. Code Crim. Proc. Ann. art. 42.02. The sentence consists of the number of years to be served and the fine assessed, if any. Therefore, the trial court had no duty to orally pronounce restitution. We overrule appellant's first point of error as to the restitution order.
        The records show appellant paid $1710.00 in restitution while on community supervision. Thus, the $4952.36 restitution amount recited in the trial court's judgment is incorrect. We sustain appellant's second point of error. We modify the trial court's judgment to show the restitution amount is $3242.36 and to delete the $2.00 fine. See Tex. R. App. P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27-28 (Tex. Crim. App. 1993); Asberry v. State, 813 S.W.2d 526, 529-30 (Tex. App.-Dallas 1991, pet. ref'd).
        As modified, we affirm the trial court's judgment.
 
 
 
                                                          
                                                          MICHAEL J. O'NEILL
                                                          JUSTICE
Do Not Publish
Tex. R. App. P. 47
060533F.U05