Michael Christopher Velasquez v. State ( 2020 )

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-19-00263-CR
___________________________
MICHAEL CHRISTOPHER VELASQUEZ, Appellant
V.
THE STATE OF TEXAS
On Appeal from the 30th District Court
Wichita County, Texas
Trial Court No. 57,954-A
Before Sudderth, C.J.; Kerr and Birdwell, JJ.
Memorandum Opinion by Chief Justice Sudderth
MEMORANDUM OPINION
Appellant Michael Christopher Velasquez pleaded guilty to evading arrest or
detention with a vehicle in exchange for five years’ deferred adjudication community
supervision and a $1,500 fine. The fine was also listed in the trial court’s order
imposing conditions of community supervision that both Velasquez and his attorney
signed. Around a year and a half later, the trial court revoked Velasquez’s community
supervision and adjudicated his guilt of the evading-arrest offense.1 The trial court
included the $1,500 fine in the judgment of conviction and in new paperwork placing
Velasquez back on community supervision. In a single point, Velasquez now
complains that the trial court erred by including the fine in the written judgment,
contending that it was not orally pronounced in open court. We affirm.
The record reflects that at the hearing on the State’s motion to proceed to
adjudication, the trial court revoked Velasquez’s deferred adjudication community
supervision and adjudicated his guilt of the evading arrest offense, then sentenced him
to 10 years’ confinement, suspended the sentence, and placed him on community
supervision for 10 years, including 200 hours of community service and “[a]ll other
standard terms and conditions of a probation” in Wichita County, in addition to
requiring him to complete the Substance Abuse Felony Program (SAFP). The trial
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In its motion to proceed with adjudication of guilt, the State alleged that
Velasquez had violated several conditions of his community supervision. Velasquez
pleaded true to all but one of the State’s allegations, and the trial court found all of the
allegations true.
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judge warned Velasquez that he would go to prison if he violated a single term of
community supervision, and Velasquez stated, “I understand, Your Honor.”
The trial judge then asked the prosecutor if he had any questions or additional
comments, and the prosecutor asked a question about “monetary arrearages”:
THE COURT: [Prosecutor], are there any questions or additional
comments?
[Prosecutor]: Judge, just for clarification, as far as the monetary
arrearages, do you want those rolled into this new probation?
THE COURT: They’re confirmed and they are rolled in. [Emphases
added.]
The prosecutor informed the trial court that it might take a little time to draft the
additional community-supervision conditions.
When the proceedings resumed the next day, the trial court announced, “Mr.
Velasquez, at the conclusion of yesterday’s hearing I announced a sentence, but I’m
going to announce it again today in open court in conjunction with the paperwork that’s been
entered.” [Emphasis added.] The trial court then orally pronounced Velasquez’s
sentence:
Having found that the allegation is true that you violated the terms of
your deferred adjudication community supervision, your deferred
probation is revoked. You’re hereby convicted of the offense of evading
arrest with a motor vehicle and that felony conviction is entered.
The new sentence will be that you are placed in -- sentenced to
ten years in the Texas Department of Criminal Justice Institutional
Division. That will be probated for a period of ten years.
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In addition to all previous terms and conditions that were ordered, the
following conditions will also be added to that ten years’ probation:
First you’ll be ordered to conduct [an SAFP] treatment and you’ll
be required to wait on a bed in jail, in the Wichita County Jail, until that
bed is available.
You’re being ordered to complete an additional 200 hours of
community service while on probation at the rate of at least ten hours
per month.
Report two times per month for the first 24 months after you’re
released from SAFP.
Conduct a UA no less than one time a month for the first 24
months after you’re released from SAFP.
Additionally, you’re ordered to submit to 20 weekends in jail after
you’re released from SAFP and returned to Wichita County starting each
Friday at 6:00 p.m. to the following Sunday at 6:00 p.m. until those 20
days -- 20 weekends are completed. [Emphasis added.]
In the May 10, 2019 written judgment, the trial court listed “fine arrearages” of
$1,500; the $1,500 fine was also included in the new order imposing conditions of
community supervision signed by Velasquez and his counsel on the same day as the
oral pronouncement. Velasquez does not raise any complaint in this appeal about the
fine’s inclusion in the terms of his community supervision. The State claims that the
trial court sufficiently orally pronounced the fine by discussing the “arrearages.”2
2
The State also argues that we should apply case law in which fines not orally
pronounced during sentencing have been upheld by harmonizing the oral
pronouncement, jury verdict, and written judgment. See, e.g., Ette v. State, 559 S.W.3d
511, 513 (Tex. Crim. App. 2018) (holding that judicially created rule giving precedence
to oral pronouncement over written judgment “cannot supplant a jury’s lawful verdict
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A trial court’s sentencing pronouncement is oral, while the judgment is merely
the written declaration and embodiment of that oral pronouncement. Taylor v. State,
131 S.W.3d 497, 500 (Tex. Crim. App. 2004). If there is a conflict between the oral
pronouncement and the written judgment, the oral pronouncement controls. Id.; see
Coffey v. State, 979 S.W.2d 326, 328 (Tex. Crim. App. 1998). When deferred
adjudication community supervision is revoked and guilt adjudicated, the order
adjudicating guilt sets aside the deferred adjudication order, including any previously
imposed fine. Taylor, 131 S.W.3d at 502. Fines generally must be orally pronounced
in the defendant’s presence because they are punitive. Armstrong v. State, 340 S.W.3d
759, 767 (Tex. Crim. App. 2011) (citing Tex. Code Crim. Proc. Ann. art. 42.03, § 1(a)).
“[D]ue process requires that the defendant be given fair notice of all of the terms of
his sentence, so that he may object and offer a defense to any terms he believes are
inappropriate.” Burt v. State, 445 S.W.3d 752, 757 (Tex. Crim. App. 2014).
As reflected above, Velasquez was on notice of the re-imposition of the $1,500
fine during the sentence’s oral pronouncement. The trial court’s response to the
prosecutor’s question about “monetary arrearages”—that “[t]hey’re confirmed and
they are rolled in”—was Velasquez’s first indication that the fine would be
incorporated into the trial court’s judgment. Any ambiguity was subsequently
resolved the following day, when the trial court orally pronounced sentence,
on punishment that has been correctly read aloud in a defendant’s presence in court”).
But this case does not involve a jury verdict.
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referencing “all previous terms and conditions,” which both Velasquez and his
attorney had signed the first time Velasquez received community supervision. And
Velasquez and his counsel signed the new terms and conditions of his community
supervision on the same day as the trial court’s judgment and raised no objection to
the $1,500 fine contained therein. See Speth v. State, 6 S.W.3d 530, 534 & n.9 (Tex.
Crim. App. 1999) (stating that a defendant who benefits from the contractual privilege
of community supervision must complain at trial to conditions he finds objectionable
if he knows what the conditions are in time to object); see also Gutierrez-Rodriguez v.
State, 444 S.W.3d 21, 24 (Tex. Crim. App. 2014) (holding that appellant forfeited her
complaint to a restitution requirement when the record reflected that it was discussed
during the punishment hearing and that she had an opportunity to object to it but did
not). Accordingly, we overrule Velasquez’s sole point and affirm the trial court’s
judgment.
/s/ Bonnie Sudderth
Bonnie Sudderth
Chief Justice
Do Not Publish
Tex. R. App. P. 47.2(b)
Delivered: April 23, 2020
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