JOSE DAVID TREVINO v. THE STATE OF TEXAS (2011)

MEMORANDUM OPINION

Opinion By Justice O'Neill

Jose David Trevino waived a jury and pleaded guilty to two burglary of a habitation offenses and one unlawful possession of a firearm by a felon offense.   See Tex. Penal Code Ann. §§ 30.02(a), 46.04(a) (West 2011).   After finding appellant guilty, the trial court assessed punishment at twenty years' imprisonment and a $2,500 fine for each burglary conviction and ten years' imprisonment and a $2,000 fine for the unlawful possession of a firearm conviction.   In a single issue, appellant contends the trial court abused is discretion by sentencing him to imprisonment.   We affirm the trial court's judgments in cause nos.   05–11–00301–CR and 05–11–00302–CR.   We modify the trial court's judgment in cause no.   05–11–00303–CR to reflect a $2,000 fine assessed by the trial court and, as modified, affirm the trial court's judgment.   The background of the cases and the evidence admitted at trial are well known to the parties, and we therefore limit recitation of the facts.   We issue this memorandum opinion pursuant to Texas Rule of Appellate Procedure 47.4 because the law to be applied in the case is well settled.

Appellant contends the trial court abused its discretion by sentencing him to imprisonment because such punishment violates the objectives of the penal code and is not necessary to prevent recurrence of his criminal behavior.   Appellant asserts he was under the influence of heroin at the time he committed the offenses, and the trial court should have granted deferred adjudication community supervision to allow him to complete a drug treatment program.   Appellant argues the punishment is merely punitive and does not further the rehabilitation goals of the penal code.   The State responds that appellant has not preserved his complaint for appellate review and, alternatively, the record does not show that appellant's sentences are in any way violative of the objectives of the penal code.

Appellant did not complain about the sentences either at the time they were imposed or in motions 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 neither objected to the sentences nor filed any motions for new trial.   Thus, appellant has not preserved this issue for our review.

Even if appellant had preserved error, however, his argument still fails.   In these cases, the trial court imposed punishment within the statutory range for the offenses enhanced by prior felony convictions.   See Tex. Penal Code Ann. §§ 12.32(a), 12.34(a), 30.02(d), 46.04(e) (West 2011).   As a general rule, punishment that is assessed within the statutory range for an offense is neither excessive nor unconstitutionally cruel or unusual.  Kirk v. State, 949 S.W.2d 769, 772 (Tex.App.-Dallas 1997, pet. ref'd).

We conclude the trial court did not abuse its discretion in assessing the twenty- and ten-year sentences.   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 resolve appellant's sole issue against him.

We note that in cause no.   05–11–00303–CR, the record shows the trial court orally pronounced a $2,000 fine when it found appellant guilty and imposed the ten-year sentence.   The trial court's judgment, however, recites the fine as “$–0–.”  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).   Accordingly, we modify the trial court's judgment to include the $2,000 fine.   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).

In cause nos.   05–11–00301–CR and 05–11–00302–CR, we affirm the trial court's judgments.   In cause no.   05–11–00303–CR, we affirm the trial court's judgment as modified.

MICHAEL J. O'NEILL JUSTICE