Samuel E. McMurray v. The State of Texas--Appeal from Crim Dist Ct 3 of Dallas Co of Dallas County

IN THE

TENTH COURT OF APPEALS

No. 10-00-074-CR

SAMUEL E. McMURRAY,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the Criminal District Court 3

Dallas County, Texas

Trial Court # F99-53015-MJ

O P I N I O N

Appellant McMurray appeals from a judgment imposing 20 years in prison and a fine of $1000, in his conviction for burglary of a habitation, enhanced by one prior felony conviction.

Appellant was charged with burglary of a habitation enhanced by one prior felony conviction. In an open plea, appellant pled guilty to the burglary and true to the enhancement. Thereafter, the court at punishment hearing, found appellant guilty of burglary and the enhancement paragraph to be true. The court then stated: I set your punishment at 20 years in the Institutional Division of the Texas Department of Criminal Justice, where you shall be held for 20 years or until your sentence is discharged according to law.

The written judgment prepared later, imposed 20 years confinement and a fine of $1000.

Appellant appeals on one issue: The judgment should be reformed and the fine deleted since the trial court failed to orally pronounce the fine as part of the sentence.

Appellant contends that since the oral pronouncement of sentence varied from the written judgment, that the fine should be deleted from the judgment.

Appellant is entitled to have his sentence, including the assessment of any fine, pronounced in his presence. Tex. Code Crim. Proc. Art. 42.03 Sec. 1(a); Coffey v. State, 979 S.W.2d 326, 328 (Tex. Crim. App. 1998); Abron v. State, 997 S.W.2d 281, 282 (Tex. App. Dallas 1998, pet. ref d). When there is a variation between the oral pronouncement of sentence and the written memorialization of the sentence, the oral pronouncement controls. Coffey, p. 328.

Since the record shows that the trial court did not assess a fine in his oral pronouncement of sentence, we sustain appellant s issue and contentions.

The trial court s judgment is modified to delete the fine, and as modified, is affirmed. Bigley v. State, 865 S.W.2d 26, 27 (Tex. Crim. App. 1993).

FRANK G. McDONALD

Chief Justice (Retired)

Before Justice Vance,

Justice Gray, and

Chief Justice McDonald (Retired)

Affirmed

Opinion delivered and filed September 20, 2000

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