ANTONY MUTINGWENDE v. THE STATE OF TEXAS

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Court of Appeals of Texas, Dallas.

ANTONY MUTINGWENDE, Appellant v. THE STATE OF TEXAS, Appellee

No. 05-09-00745-CR

Decided: January 28, 2010

Before Justices Morris, O'Neill, and Fillmore

MEMORANDUM OPINION

Opinion By Justice Fillmore

Antony Mutingwende appeals from his conviction for felony driving while intoxicated (DWI).   In two points of error, Mutingwende contends the trial court's judgment should be modified and the trial court abused its discretion by sentencing him to imprisonment.   We affirm the trial court's judgment as modified.   The background of the case and the evidence adduced at trial are well known to the parties, and therefore we 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.

Mutingwende waived a jury and pleaded guilty to felony DWI. Pursuant to a plea agreement, the trial court assessed punishment at ten years' imprisonment, probated for ten years, and a $2000 fine.   The State later moved to revoke Mutingwende's community supervision, alleging Mutingwende violated seven conditions of community supervision.   Mutingwende pleaded true to the allegations in a hearing on the motion.   The trial court found the allegations true, revoked Mutingwende's community supervision, and assessed punishment at five years' imprisonment.

In his second point of error, Mutingwende contends the trial court abused its discretion and violated the objectives of the Texas Penal Code by sentencing him to prison because he was making diligent efforts to pursue a career, and the trial court should have considered the rehabilitative objectives of the penal code and not simply the punishment objectives.   The State responds that the trial court did not abuse its discretion in imposing a prison sentence, and the sentence did not violate the objectives of the penal code.

Mutingwende 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).   After sentencing, Mutingwende did not object to the sentence.   Thus, Mutingwende has not preserved this issue for our review.

Even if Mutingwende 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, 49.04(a), 49.09(b) (Vernon 2003 & Supp.2009).

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

In his first point of error, Mutingwende contends the trial court's written judgment should be modified to reflect the correct names of his attorney and the attorney for the State.   The State agrees that the judgments should be modified to correct the names of attorneys representing the State and Mutingwende at the revocation hearing.

The record shows that at the revocation hearing, the State was represented by Jody Rudman and Mutingwende was represented by David Carlton Hughes.   The written judgment, however, recites the State was represented by Jeff Matovich and Mutingwende was represented by Al Gilbertson.   Thus, the written judgment is incorrect.   We sustain Mutingwende's first point of error.

We modify the trial court's judgment to show Jody Rudman was the attorney for the State and David Carlton Hughes was the attorney for Mutingwende.   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.

ROBERT M. FILLMORE JUSTICE

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