JOSE CHAVEZ v. THE STATE OF TEXAS (2012)

MEMORANDUM OPINION

Opinion By Justice Lang

Jose Chavez appeals his convictions for two offenses of assault involving family violence and one offense of tampering with physical evidence.   In four points of error, appellant contends the trial court abused its discretion by sentencing him to imprisonment, and the trial court's judgment adjudicating guilt in cause no.   05–11–00890–CR should be modified.   In cause no.   05–11–00890–CR, we modify the trial court's judgment and affirm as modified.   In cause nos.   05–11–00891–CR and 05–11–00892–CR, we affirm the trial court's judgments.   The background of these 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 cases is well settled.

Background

In 2010, appellant waived a jury and pleaded guilty to assault by impeding breathing/circulation-family violence, having a prior conviction for assault-family violence.   See Tex. Penal Code Ann. § 22.01(a)(1), (b–1)(2) (West 2011);  Tex. Fam.Code Ann. § 71.004(1) (West 2008).   Pursuant to a plea agreement, the trial court deferred adjudicating guilt, placed appellant on two years' community supervision, and assessed a $1,500 fine.   The State later filed a motion to adjudicate guilt, alleging appellant violated seven conditions of his community supervision, including committing three new offenses:  assault-family violence, evading arrest, and driving while intoxicated (DWI).   During a hearing on the motion, the State abandoned the evading arrest and DWI allegations.   Appellant pleaded true to all of the remaining allegations.   The trial court found the allegations true, adjudicated appellant guilty, and assessed punishment at eleven years' imprisonment.   During that same hearing, appellant waived a jury and pleaded guilty to the new assault involving family violence and tampering with physical evidence charges.   See Tex. Penal Code Ann. §§ 22.01(a)(1), 37.09(a)(1).   The trial court assessed punishment at ten years' imprisonment in each case.

Abuse of Discretion

In his first three points of error, appellant contends the trial court abused its discretion by sentencing him to imprisonment because such punishment violated the objectives of the penal code, are “merely punitive,” and are not necessary to prevent the recurrence of an offense.   Appellant argues that because all of his crimes were the result of his alcoholism, he needed treatment rather than imprisonment.   The State responds that appellant has failed to preserve his complaints for appellate review and, alternatively, the records do not show the sentences violate 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, record must show appellant made a timely request, objection, or motion).   Thus, appellant has not preserved his issues for our review.

Moreover, as a general rule, punishment that is assessed within the statutory range for an 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 second- and third-degree felony offenses.   See Tex. Penal Code Ann. §§ 12.33, 12.34, 22.01(b)(2), 37.09(c).  We conclude the trial court did not abuse its discretion in assessing the eleven- and ten-year sentences.   See Jackson v. State, 680 S.W.2d 809, 814 (Tex.Crim.App.1984) (sentence within proper range of punishment will not be disturbed on appeal).   We overrule appellant's first three points of error.

Modify Judgment

In his fourth point of error, appellant contends the judgment in cause no.   05–11–00890–CR should be modified to reflect the conditions of community supervision he was found to have violated.   The State agrees the judgments should be modified in the manner appellant requests.

Although the State abandoned the allegation that appellant committed new offenses of evading arrest and DWI and proceeded on the remaining six allegations, the judgment recites the trial court found appellant violated the conditions of community supervision “as set out in the State's original motion to adjudicate.”   Thus, the judgment adjudicating guilt is incorrect.   We sustain appellant's fourth point of error.   Further, the record shows appellant was convicted under statute 22.01 for the offense of assault by impeding breathing/circulation-family violence, having a prior conviction for assault-family violence.   See Tex. Penal Code Ann. § 22.01(a)(1), (b–1)(2).   The judgment adjudicating guilt recites the statute for the offense as 22.02.   Thus, the judgment is incorrect.

We modify the judgment adjudicating guilt to show the trial court found appellant violated conditions (a), (j), (k), (n), (r), and (s) of community supervision.   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).   We also modify the judgment adjudicating guilt to show the statute for the offense is “22.01(a)(1), (b–1)(2) Penal Code.” Id.

Conclusion

In cause no.   05–11–00890–CR, we affirm the judgment adjudicating guilt as modified.   In cause nos.   05–11–00891–CR and 05–11–00892–CR, we affirm the trial court's judgments.

DOUGLAS S. LANG

JUSTICE

Do Not Publish

Tex.R.App. P. 47

110890F.U05

S

Court of AppealsFifth District of Texas at DallasJUDGMENT

JOSE CHAVEZ, Appellant

No. 05–11–00890–CR V.

THE STATE OF TEXAS, AppelleeAppeal from the 283rd Judicial District Court of Dallas County, Texas.  (Tr.Ct.No.F09–34754–T).

Opinion delivered by Justice Lang, Justices Bridges and Francis participating.

Based on the Court's opinion of this date, the trial court's judgment adjudicating guilt is MODIFIED as follows:

The section entitled “Statute for Offense” is modified to show “22.01(a)(1), (b–1)(2) Penal Code.”

The section entitled “(5) While on community supervision” is modified to show “(5) While on community supervision, Defendant violated conditions (a), (j), (k), (n), (r), and (s) of community supervision.”

As modified, we AFFIRM the trial court's judgment adjudicating guilt.

Judgment entered July 3, 2012.

/Douglas S. Lang/

DOUGLAS S. LANG

JUSTICE

S

Court of AppealsFifth District of Texas at DallasJUDGMENT

JOSE CHAVEZ, Appellant

No. 05–11–00891–CR V.

THE STATE OF TEXAS, AppelleeAppeal from the 283rd Judicial District Court of Dallas County, Texas.  (Tr.Ct.No.F10–35711–T).

Opinion delivered by Justice Lang, Justices Bridges and Francis participating.

Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED.

Judgment entered July 3, 2012.

/Douglas S. Lang/

S

Court of AppealsFifth District of Texas at DallasJUDGMENT

JOSE CHAVEZ, Appellant

No. 05–11–00892–CR V.

THE STATE OF TEXAS, AppelleeAppeal from the 283rd Judicial District Court of Dallas County, Texas.  (Tr.Ct.No.F10–35859–T).

Opinion delivered by Justice Lang, Justices Bridges and Francis participating.

Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED.

Judgment entered July 3, 2012.

/Douglas S. Lang/

DOUGLAS S. LANG

JUSTICE

DOUGLAS S. LANG JUSTICE