TONY SCATES v. THE STATE OF TEXAS (2011)

MEMORANDUM OPINION

Opinion By Justice Francis

Tony Scates waived a jury and pleaded guilty to attempted burglary of a habitation.   After finding appellant guilty, the trial court assessed punishment, enhanced by two prior burglary of a habitation convictions, at thirty-five years in prison.   In two issues, appellant contends the trial court abused its discretion by sentencing him to prison and the judgment should be modified to show the sentence was not the result of a plea bargain and the trial court ordered appellant to receive drug treatment while in prison.   We modify the trial court's judgment and affirm as modified.

Appellant contends the trial court abused its discretion and violated the objectives of the penal code by sentencing him to a thirty-five-year prison term because the sentence is merely punitive and does not follow his comprehensive assessment and treatment evaluation.   Appellant asserts that because the trial court recognized his need for drug treatment by ordering he receive it in prison, the trial court should have imposed probation and ordered him to drug treatment rather than imposing a prison sentence.   The State responds appellant has failed to preserve his complaint for appellate review and, alternatively, the record does not show the sentence violates the objectives of the penal code.

Appellant did not complain about the sentence either at the time it was imposed or in a 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, record must show appellant made timely request, objection, or motion).   Thus, appellant has not preserved this issue for our review.

In addition, the trial court imposed a sentence that is ten years higher than the minimum punishment for a habitual offender with two prior felony offenses.   See Tex. Penal Code Ann. §§ 12.32, 12.42(d), 15.01(d), 30.02(d) (West 2011).   We conclude the trial court did not abuse its discretion by assessing the thirty-five-year sentence.   See Jackson v. State, 680 S.W.2d 809, 814 (Tex.Crim.App.1984) (as long as a sentence is within proper range of punishment it will not be disturbed on appeal).   We resolve appellant's first issue against him.

In his second issue, appellant contends the written judgment should be modified to show no plea agreement existed in this case, and the trial court ordered him to attend drug treatment while in prison.   Appellant entered an “open” plea of guilty during the hearing, and no mention was made of a plea bargain agreement.   The judgment, however, recites the terms of the plea bargain were “35 Yrs TDC.” Thus, the judgment is incorrect.   Additionally, the judgment does not reflect the trial court's order that appellant receive drug treatment while in prison.   We sustain appellant's second issue.

We modify the trial court's judgment to show the terms of plea bargain is “None” and that the trial court ordered appellant to receive drug treatment.   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.

MOLLY FRANCIS JUSTICE