PAUL BRUCE STOCKING v. THE STATE OF TEXAS (2010)

OPINION

Opinion By Justice Moseley

Paul Bruce Stocking waived a jury and pleaded guilty to driving while intoxicated, third offense.   The trial court assessed punishment at five years' imprisonment.   In three points of error, appellant contends the written judgment should be modified to delete the fine and to correct the name of the attorney for the State, and the trial court abused its discretion by sentencing him to prison.   We affirm the trial court's judgment as modified.

In his third point of error, appellant contends the trial court abused its discretion and violated the objectives of the Texas Penal Code by sentencing him to prison.   Appellant asserts the sentence is not necessary to prevent the recurrence of any criminal behavior, and in light of his medical issues and personal circumstances, assessing a prison term is overly harsh.   The State responds that appellant has failed to preserve his complaint for appellate review and, alternatively, the record does not support his claims.

Appellant did not complain about the sentence either at the time it was imposed or in his motion for new trial.   See Tex.R.App. P. 33.1(a)(1);  Castaneda v. State, 135 S.W.3d 719, 723 (Tex.App.-Dallas 2003, no pet.) (for error to be preserved for appeal, the record must show appellant made a timely request, objection, or motion).   After sentencing, appellant did not object to the sentence, and his motion for new trial complained that the verdict was contrary to the law and the evidence.   Thus, appellant has not preserved this issue for our review.

Even if appellant had preserved error, however, his arguments still fail.   As a general rule, punishment that is assessed within the statutory range for the offense is not excessive or unconstitutionally cruel or unusual.  Kirk v. State, 949 S.W.2d 769, 772 (Tex.App.-Dallas 1997, pet. ref'd).   In this case, the trial court imposed punishment within the statutory range for the offense.   See Tex. Penal Code Ann. §§ 12.34, 49.09(b)(2) (Vernon Supp.2009).

We conclude the trial court did not abuse its discretion in assessing the sentence.   See Jackson v. State, 680 S.W.2d 809, 814 (Tex.Crim.App.1984) (as long as a sentence is within the proper range of punishment, it will not be disturbed on appeal).   We overrule appellant's third point of error.

In his first point of error, appellant contends the trial court's written judgment should be modified to delete a fine that was not orally pronounced.   In his second point of error, appellant contends the trial court's written judgment should be modified to reflect the correct name of the prosecutor at the proceedings.   The State agrees the judgment should be modified to delete the fine and to reflect the correct name of the prosecutor at the proceedings.

The record shows the trial court did not orally pronounce a fine when it imposed the five year sentence.   The trial court's judgment recites a $3000 fine.   When a conflict exists between the oral pronouncement and the written judgment, the oral pronouncement controls.   See Coffey v. State, 979 S.W.2d 326, 328 (Tex.Crim.App.1998).   We sustain appellant's first point of error.

The record also shows Jason Hermus represented the State during the plea hearing.   The trial court's judgment recites that Stephanie Councilman was the prosecutor representing the State.   Thus, the trial court's judgment is incorrect.   We sustain appellant's second point of error.   We modify the trial court's judgment to delete the $3000 fine and to reflect the attorney for the State was Jason Hermus.   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.

JIM MOSELEY JUSTICE