Cordero Kyle Beck v. State ( 2010 )

NOS. 12-09-00327-CR
12-09-00328-CR
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
CORDERO KYLE BECK, ' APPEAL FROM THE 114TH
APPELLANT
V. ' JUDICIAL DISTRICT COURT OF
THE STATE OF TEXAS,
APPELLEE ' SMITH COUNTY, TEXAS
MEMORANDUM OPINION
Cordero Kyle Beck appeals his convictions and sentences for the offenses of aggravated
robbery (trial court cause number 114-0542-09) and engaging in organized criminal activity (trial
court cause number 114-0543-09). He raises two issues on appeal. We modify the judgment,
and as modified, affirm.
BACKGROUND
In September, 2009, Appellant was tried in a single proceeding for aggravated robbery
and engaging in organized criminal activity. Appellant entered an open plea of guilty and
requested that the trial court determine punishment. Following a hearing on punishment, the trial
court assessed punishment at thirty years of imprisonment on each offense, to be served
concurrently. Appellant timely appealed.
JUDGMENT
In Appellant’s two issues, he asks that we reform both of the trial court’s judgments to
accurately reflect the proceedings at trial. The State has joined Appellant in this request.
Applicable Law
A defendant’s sentence must be pronounced orally in his presence. TEX. CODE CRIM.
PROC. ANN. art. 42.03, § 1(a) (Vernon Supp. 2009). The judgment, including the sentence
assessed, is merely the written declaration and embodiment of that oral pronouncement. Taylor
v. State, 131 S.W.3d 497, 500 (Tex. Crim. App. 2004). When there is a conflict between the oral
pronouncement of sentence and the sentence in the written judgment, the oral pronouncement
controls. Id. This court has the authority to modify incorrect judgments when the necessary
information is available to do so. See TEX. R. APP. P. 43.2(b).
Discussion
In Appellant’s first issue, he argues that the trial court erred because both of its judgments
state that the “Terms of Plea Bargain” were “THIRTY (30) YEARS IN THE TEXAS
DEPARTMENT OF CRIMINAL JUSTICE.” The record shows that Appellant entered an open
guilty plea, not a negotiated plea. Accordingly, we sustain Appellant’s first issue.
In his second issue, Appellant contends that the trial court erred because its written
judgments state that he must pay restitution in an amount “To Be Determined.” When the trial
court pronounced sentence for both offenses, it did not mention restitution or set an amount.
There was no evidence in the record to establish any amount of restitution. Therefore, we sustain
Appellant’s second issue.
DISPOSITION
We have sustained both of Appellant’s issues for trial court cause numbers 114-0542-09
and 114-0543-09. Accordingly, we modify the trial court’s judgments to show Appellant entered
an open plea. See Olivares v. State, Nos. 05-04-00511-CR, 05-04-00512-CR, 05-04-00513-CR,
05-04-00514-CR, 2004 WL 2384263, at *2 (Tex. App.—Dallas Oct. 26, 2004, pet. ref’d) (not
designated for publication) (modifying judgment to reflect defendant’s plea was “open” rather
than negotiated plea with “terms of plea bargain” as “40 years TDC”). We also modify the trial
court’s judgments to delete any reference to restitution. See Taylor, 131 S.W.3d at 502
(affirming deletion of fine from judgment where fine was not assessed when sentence was orally
pronounced); see also Gibson v. State, No. 03-07-00191-CR, 2007 WL 4207824, at *3 (Tex.
App.—Austin Nov. 29, 2007, no pet.) (mem. op., not designated for publication) (modifying
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written judgment to delete “to be determined” following “restitution” when restitution not
ordered). As modified, we affirm the judgments of the trial court.
BRIAN HOYLE
Justice
Opinion delivered July 7, 2010.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.
(DO NOT PUBLISH)
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