Derrick Lashun Hicks v. the State of Texas

IN THE
TENTH COURT OF APPEALS

No. 10-23-00344-CR

DERRICK LASHUN HICKS,
Appellant
v.

THE STATE OF TEXAS,
Appellee

From the 66th District Court
Hill County, Texas
Trial Court No. F016-23

MEMORANDUM OPINION

Appellant, Derrick Lashun Hicks, appeals from the trial court’s judgment

adjudicating his guilt, revoking his community supervision, and sentencing him to 23

months in state jail for the offense of Theft of Property Less Than $2,500 with Two or More

Prior Convictions. See TEX. PENAL CODE ANN. § 31.03(e)(4)(D). In five issues, Appellant

challenges the validity of the trial court’s order originally placing him on deferred

adjudication community supervision, asserts that the assessed fine and restitution in the
judgment adjudicating his guilt should be deleted from the written judgment and bill of

costs, and requests modification of the judgment adjudicating his guilt to reflect that he

pled “not true” to the allegations in the State’s motion to adjudicate. We modify the

“Judgment Adjudicating Guilt Nunc Pro Tunc” and the bill of costs to delete the assessed

restitution, reform the judgment to reflect that Appellant made “no plea” to the State’s

allegations, and affirm the judgment as modified.

Validity of the Order of Deferred Adjudication

In his first and second issues on appeal, Appellant challenges the validity of the

trial court’s order deferring adjudication of his guilt, arguing that the record from his

original plea proceeding does not reflect his knowing and intelligent waiver of his right

to a jury trial or his entry of a guilty plea to the charged offense.

An application for writ of habeas corpus under Article 11 of the Texas Code of

Criminal Procedure is the proper procedural vehicle to challenge the voluntariness of a

plea-bargaining defendant’s plea. See Jordan v. State, 54 S.W.3d 783, 786-87 (Tex. Crim.

App. 2001); Carnley v. State, 682 S.W.3d 287, 288 (Tex. App.—Waco 2023, no pet.); see also

TEX. CODE CRIM. PROC. ANN. art. 11.

We therefore dismiss Appellant’s first and second issues because we have no

jurisdiction to consider them.

Hicks v. State Page 2
Assessment of Fine and Restitution

In his third issue, Appellant argues that the trial court improperly imposed a fine

and restitution in the judgment adjudicating his guilt because the trial court did not orally

pronounce the fine or the restitution during sentencing at the adjudication hearing. In

his fourth issue, Appellant argues that the fine and restitution should also be deleted from

the bill of costs.

RELEVANT LAW

A trial court is required to orally pronounce a defendant’s sentence; the judgment

is merely the written declaration of that oral pronouncement. See TEX. CODE CRIM. PROC.

ANN. art. 42.01 § 1; Ex parte Madding, 70 S.W.3d 131, 135 (Tex. Crim. App. 2002). When

the record of the proceedings reflects that the oral pronouncement and written judgment

differ, the oral pronouncement controls. Id. A fine is punitive in nature and intended to

be part of a defendant’s sentence; therefore, it must be orally pronounced. See Armstrong

v. State, 340 S.W.3d 759, 767 (Tex. Crim. App. 2011); Weir v. State, 278 S.W.3d 364, 366 (Tex.

Crim. App. 2009). Restitution must also be pronounced on the record as part of a

defendant’s sentence. See Freeman v. State, 554 S.W.3d 816, 817 (Tex. App.—Waco 2018,

no pet.).

When a defendant is placed on deferred adjudication community supervision, no

sentence is imposed. See Taylor v. State, 131 S.W.3d 497, 502 (Tex. Crim. App. 2004). If the

defendant’s guilt is subsequently adjudicated, the order adjudicating guilt sets aside the

Hicks v. State Page 3
order deferring adjudication, including any previously assessed fine or restitution. See

id.; Freeman, 554 S.W.3d at 817. Therefore, in order for a fine or restitution order to be part

of the defendant’s sentence, they must be orally pronounced by the trial court when the

defendant’s guilt is adjudicated. See id.

DISCUSSION

Here, the trial court’s Order of Deferred Adjudication included a fine in the

amount of $200 and restitution to Wal-Mart in the amount of $99. After adjudicating

Appellant’s guilt, the trial court’s oral pronouncement of Appellant’s sentence included

only his term of imprisonment. Though the trial court made no mention of the fine or

restitution during sentencing, the written Judgment Adjudicating Guilt included the $200

fine and $99 restitution.

Appellant filed his notice of appeal from the trial court’s judgment adjudicating

his guilt. His original appellate counsel subsequently filed an Anders brief with this

Court. See generally Anders v. California, 386 U.S. 738 (1967). After our independent review

of the record revealed that arguable grounds for appeal existed, including that Appellant

was assessed a fine in the written judgment that was not pronounced orally at sentencing

when his guilt was adjudicated, we abated this appeal for the trial court to withdraw the

appointment of the original counsel and appoint new counsel to pursue this appeal.

Along with the trial court’s order appointing new appellate counsel, the trial court clerk

filed in this Court a “Judgment Adjudicating Guilt Nunc Pro Tunc” entered while the

Hicks v. State Page 4
appeal was abated, as well as a new certified bill of costs. In the nunc pro tunc judgment,

the trial court deleted the $200 fine. The accompanying bill of costs indicates that

Appellant will not have to pay the fine due to his indigent status. However, the $99

restitution order is still assessed in the nunc pro tunc judgment and in the accompanying

bill of costs.

Because the trial court’s Judgment Adjudicating Guilt Nunc Pro Tunc and

accompanying bill of costs resolved Appellant’s complaints in his third and fourth issues

about the assessment of the $200 fine, the complaints regarding the fine are moot and we

dismiss those complaints. See Palacio v. State, 685 S.W.3d 160, 162-63 (Tex. App.—Waco

2023, no pet.). However, because the trial court did not orally pronounce the $99

restitution order when Appellant was adjudicated, we sustain Appellant’s third and

fourth issues, in part, and modify the Judgment Adjudicating Guilt Nunc Pro Tunc and

the bill of costs to delete the assessed $99 restitution order.

Plea to the State’s Motion to Adjudicate

The Judgment Adjudicating Guilt Nunc Pro Tunc currently reflects that Appellant

pled “True” to the allegations in the State’s motion to proceed to adjudication of guilt. In

his fifth issue, Appellant requests that we modify the judgment to reflect that he contested

the allegations in the State’s motion to adjudicate and suggests that the judgment should

state that he pled “not true.” The State is not opposed to the requested modification.

Hicks v. State Page 5
The record supports the parties’ agreement that the written judgment adjudicating

guilt incorrectly reflects that Appellant pled “true” to the allegations in the State’s motion

to adjudicate. However, rather than a plea of “not true,” the record reflects that the trial

court did not ask for – and Appellant did not enter – any plea to the allegations in the

State’s motion to adjudicate.1 A court of appeals has authority to correct or reform a

judgment to make a record speak the truth when it has the information to do so. See TEX.

R. APP. P. 43.2(b); see also Bigley v. State, 865 S.W.2d 26, 27-28 (Tex. Crim. App. 1993). As

such, we sustain Appellant’s fifth issue, in part, and modify the nunc pro tunc judgment

to reflect a “no plea” entry under the heading “Plea to Motion to Adjudicate.”

Conclusion

The Judgment Adjudicating Guilt Nunc Pro Tunc and the bill of costs are modified

to delete the $99 order of restitution. The nunc pro tunc judgment is further modified to

reflect that Appellant entered “no plea” to the State’s allegations. Having dismissed all

of Appellant’s other issues on appeal, we affirm the judgment of the trial court as

modified.2

STEVE SMITH
Justice

1See Detrich v. State, 545 S.W.2d 835, 837 (Tex. Crim. App. 1977) (holding that due process does not require
that a plea be entered in a revocation proceeding); see also Spencer v. State, No. 02-21-00240-CR, 2022 Tex.
App. LEXIS 8632, 2022 WL 17173133, at *9-10 (Tex. App.—Fort Worth Nov. 23, 2022, no pet.) (mem. op.,
not designated for publication) (applying Detrich to an adjudication proceeding).

2 All pending motions are dismissed as moot.

Hicks v. State Page 6
Before Chief Justice Gray,
Justice Johnson, and
Justice Smith
(Chief Justice Gray dissents)
Affirmed as modified
Opinion delivered and filed November 14, 2024
Do not publish
[CR25]

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