holding the sentence pronounced in open court represents the actual sentence and should there arise any conflict between the sentence pronounced in open court and that manifested in the ensuing judgment, the sentence pronounced in open court controls
How later courts described this case
- holding the sentence pronounced in open court represents the actual sentence and should there arise any conflict between the sentence pronounced in open court and that manifested in the ensuing judgment, the sentence pronounced in open court controls
- stating that article 42.03, section 1(a) “provides that the sentence shall be pronounced in the defendant’s presence, except as provided in Article 42.14, V.A.C.C.P., which allows such to be done in the absence of the defendant in a misdemeanor case”
- finding that the judgment revoking community supervision properly contained a fine even though it was not pronounced during the revocation hearing because the fine was orally pronounced when the defendant was placed on community supervision
- concluding that, when there is a variation between the oral pronouncement of 2 sentence and the written memorialization of the sentence, the oral pronouncement controls
Written by the judges who cited it.
The opinion
KELLER, Judge,
concurring.
I join part IV only of the majority opinion. Because the fine was never probated, it was appropriately included in the trial court’s judgment revoking probation. I do not join Parts I through III because they are unnecessary to the disposition of this ease. Whether the oral or written judgment revoking probation controls is of no consequence to *330 whether the fine was properly included in the judgment because the fine had never been probated. This fact becomes obvious when the majority opinion concludes that the oral pronouncement, which did not include the fine, controls but then decides that the fine is included anyway because it had never been probated. That the fine was never probated is the State’s only contention in its petition for discretionary review before this Court. The State makes no argument whatsoever concerning whether the oral pronouncement controls over the written judgment or vice versa. The “oral pronouncement versus written judgment” issue was not raised and has no bearing on the disposition of this case. That makes parts I through III of the majority opinion pure dicta. Hence, I can only join part IV.
McCORMICK, P.J., HOLLAND, and WOMACK, JJ., join.