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ETTE, EDDIE OFFIONG

PD-0538-17 09/13/2017

“The court of appeals erred in affirming a fine included in the judgment which had not been orally pronounced by the trial court at sentencing.”

The jury recommended a suspended prison sentence and assessed a $10,000 fine. The trial court pronounced Ette’s sentence in accordance with the jury’s decision but failed to mention the fine. The written judgment included the fine.

Ette appealed, arguing that, because the fine was not orally pronounced, it is unlawful and should be deleted. A majority of the court of appeals disagreed. It held that the ambiguity must be resolved in favor of the jury’s verdict, which the trial court accepted. Further, the record shows that the trial court intended to impose the fine. The court included payment of the fine as a condition of his supervision. The dissent maintained that there is no ambiguity; when a fine is omitted, it is inconsistent with the jury’s verdict but not ambiguous. Looking outside the pronouncement to create an ambiguity, as the majority did, is wrong.

Ette complains that the majority erred to follow the Waco Court of Appeals’ “ambiguous sentence pronouncement rule” created in Aguilar v. State, 202 S.W.3d 840 (Tex. App.—Waco 2006, pet. ref’d). Under that rule, the jury’s punishment, the court’s pronouncement, and the written judgment are considered together to resolve an ambiguity. Ette asserts that Armstrong v. State, 340 S.W.3d 759 (Tex. Crim. App. 2011), Taylor v. State, 131 S.W.3d 497 (Tex. Crim. App. 2004), and Ex parte Madding, 70 S.W.3d 131 (Tex. Crim. App. 2002), are controlling and that the dissent properly adhered to them. Under those cases, the oral pronouncement prevails and the written judgment is modified to conform with the oral pronouncement.

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