Opinion
No. 05-11-01649-CR
09-19-2012
ERIC BELL CLARK, Appellant v. THE STATE OF TEXAS, Appellee
MODIFIED, and AFFIRM;
On Appeal from the Criminal District Court No. 4
Dallas County, Texas
Trial Court Cause No. F11-70569-K
MEMORANDUM OPINION
Before Justices Bridges, Richter, and Lang
Opinion By Justice Richter
Eric Bell Clark waived a jury and pleaded guilty to aggravated robbery with a deadly weapon, a handgun. See Tex. Penal Code Ann. § 29.03(a) (West 2011). The trial court assessed punishment at twenty years' imprisonment and a $1,000 fine. In two points of error, appellant contends the trial court abused its discretion by sentencing him to imprisonment and the judgment should be modified to reflect the correct name of the presiding judge. We modify the trial court's judgment and affirm as modified. The background of the case 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. In his first point of error, appellant contends the trial court abused its discretion by sentencing him to imprisonment because the punishment violates the objectives of the penal code. Appellant asserts he was on drugs at the time he committed the offense and only wanted money to feed his drug addiction. Appellant argues that because the punishment fails to address his longstanding drug and alcohol addiction, he should have received drug treatment rather than a twenty-year prison term. The State responds that appellant failed to preserve this issue for appellate review and, alternatively, the record does not show the sentence violates the objective 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.) (to preserve error, appellant must make a timely request, objection, or motion). Thus, appellant has not preserved the issue 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). The punishment range for aggravated robbery with a deadly weapon, a first-degree felony offense, is five to ninety-nine years or life imprisonment. See Tex. Penal Code Ann. §§ 12.32, 29.03(b). Appellant's twenty-year sentence is on the lower end of the statutory range.
We conclude the trial court did not abuse its discretion by assessing the twenty-year sentence. See Jackson v. State, 680 S.W.2d 809, 814 (Tex. Crim. App. 1984). We overrule appellant's first point of error.
In his second point of error, appellant contends the judgment should be modified to reflect the correct name of the presiding judge. The State agrees the judgment should be modified to reflect the name of the judge who actually presided over the proceedings. The record shows the Honorable John Creuzot presided over the proceedings. The judgment, however, identifies the Honorable Gracie Lewis as the presiding judge. Thus, the judgment is incorrect. We sustain appellant's second point of error. We modify the trial court's judgment to show the presiding judge is the Honorable John Creuzot. 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.
MARTIN RICHTER
JUSTICE
Do Not Publish
Tex. R. App. P. 47
111649F.U05
Court of Appeals Fifth District of Texas at Dallas JUDGMENT
ERIC BELL CLARK, Appellant
V.
THE STATE OF TEXAS, Appellee
No. 05-11-01649-CR
Appeal from the Criminal District Court No. 4 of Dallas County, Texas. (Tr.Ct.No. F11- 70569-K).
Opinion delivered by Justice Richter, Justices Bridges and Lang participating.
Based on the Court's opinion of this date, the judgment of the trial court is MODIFIED as follows:
The section entitled “Judge Presiding” is modified to show “Hon. John Creuzot.”
As modified, we AFFIRM the trial court's judgment.
Judgment entered September 19, 2012.
MARTIN RICHTER
JUSTICE