Kevin Lamont Garden v. State ( 2015 )

MODIFY and AFFIRM; and Opinion Filed April 3, 2015.
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-13-01507-CR
KEVIN LAMONT GARDEN, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 282nd Judicial District Court
Dallas County, Texas
Trial Court Cause No. F10-57354-S
MEMORANDUM OPINION
Before Justices Lang, Stoddart, and Schenck
Opinion by Justice Schenck
Kevin Lamont Garden appeals his conviction, following the adjudication of his guilt, for
aggravated robbery with a deadly weapon. In a single issue, appellant contends the trial court’s
judgment should be modified to delete the fine. The State agrees the fine should be deleted from
the judgment. We modify the trial court’s judgment adjudicating guilt and affirm as modified.
Appellant waived a jury and pleaded guilty to aggravated robbery with a deadly weapon,
a firearm. See TEX. PENAL CODE ANN. § 29.03(a)(2) (West 2011). The trial court deferred
adjudicating guilt, placed appellant on seven years’ community supervision, and assessed a
$2,500 fine. The State later moved to adjudicate guilt, alleging appellant violated several
conditions of his community supervision. Following a hearing at which appellant pleaded true to
the allegations, the trial court adjudicated appellant guilty of aggravated robbery with a deadly
weapon and assessed punishment at twelve years’ imprisonment. The trial judge did not orally
pronounce a fine. The trial court’s judgment adjudicating guilt, however, includes a $2,500 fine.
When a variation between the oral pronouncement of the sentence and the written
memorialization of the sentence exists, the oral pronouncement controls. See Coffey v. State, 979
S.W.2d 326, 329 (Tex. Crim. App. 1998); see also McCoy v. State, 81 S.W.3d 917, 919 (Tex.
App.—Dallas 2002, pet. ref’d). We sustain appellant’s sole issue. We modify the judgment
adjudicating guilt to delete the 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 adjudicating guilt.
/David J. Schenck/
DAVID J. SCHENCK
JUSTICE
Do Not Publish
TEX. R. APP. P. 47
131507F.U05
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Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
KEVIN LAMONT GARDEN, Appellant Appeal from the 282nd Judicial District
Court of Dallas County, Texas (Tr.Ct.No.
No. 05-13-01507-CR V. F10-57354-S).
Opinion delivered by Justice Schenck,
THE STATE OF TEXAS, Appellee Justices Lang and Stoddart participating.
Based on the Court’s opinion of this date, the trial court’s judgment adjudicating guilt is
MODIFIED as follows:
The section entitled “Fine” is modified to show “None.”
As modified, we AFFIRM the trial court’s judgment adjudicating guilt.
Judgment entered April 3, 2015.
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