MICHAEL BERNARD SPARKS v. THE STATE OF TEXAS

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Court of Appeals of Texas, Dallas.

MICHAEL BERNARD SPARKS, Appellant v. THE STATE OF TEXAS, Appellee

No. 05-10-00304-CR

Decided: October 26, 2010

Before Justices FitzGerald, Murphy, and Fillmore

MEMORANDUM OPINION

Opinion By Justice FitzGerald

Michael Bernard Sparks waived a jury, pleaded guilty to possession of cocaine in an amount of one gram or more, but less than four grams, and pleaded true to two enhancement paragraphs.   See Tex. Health & Safety Code Ann. § 481.115(a), (c) (West 2010).   After finding appellant guilty and the enhancement paragraphs true, the trial court assessed punishment at twenty-five years' imprisonment.   In two points of error, appellant contends the trial court abused its discretion by sentencing him to imprisonment and the written judgment fails to accurately reflect the degree of the offense for which he was convicted.   We modify and affirm the trial court's judgment.

Appellant contends the trial court abused its discretion and violated the rehabilitative objectives of the Texas Penal Code by sentencing him to imprisonment instead of placing him in drug treatment for his longstanding drug addiction.   The State responds that 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, the record must show appellant made a timely request, objection, or motion).   After sentencing, appellant did not object to the sentence, and he did not file a motion for new trial.   Thus, appellant has not preserved this issue for our review.

In addition, we note that the trial court imposed punishment within the statutory range for a habitual offender with more than one prior felony conviction.   See Tex. Penal Code Ann. § 12.42(d) (West Supp.2010);  Tex. Health & Safety Code Ann. § 481.115(c) (West 2010).   As a general rule, punishment that is assessed within the statutory range for the 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-five year 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 first point of error.

In his second point of error, appellant contends the trial court's written judgment should be modified to accurately reflect the degree of the offense for which appellant was convicted.   The State agrees with the modification proposed by appellant.

The record shows appellant was indicted and convicted of a third-degree felony offense.   The judgment, however, recites the offense for which appellant was convicted as a first-degree felony offense.   Thus, the judgment is incorrect.   We sustain appellant's second point of error.   We modify the trial court's judgment to show the degree of the offense is third-degree felony.   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.

KERRY P. FITZGERALD JUSTICE

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