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Adkins v. State

Court of Appeals Fifth District of Texas at Dallas
Jun 27, 2017
No. 05-16-00696-CR (Tex. App. Jun. 27, 2017)

Opinion

No. 05-16-00695-CR No. 05-16-00696-CR No. 05-16-00697-CR No. 05-16-00698-CR No. 05-16-00699-CR

06-27-2017

COURTNEY DAVON ADKINS, Appellant v. THE STATE OF TEXAS, Appellee


On Appeal from the Criminal District Court No. 3 Dallas County, Texas
Trial Court Cause Nos. F14-16187-J , F15-76857-J, F16-70189-J F16-75194-J, F16-75301-CR

MEMORANDUM OPINION

Before Justices Bridges, Lang-Miers, and Evans
Opinion by Justice Bridges

Courtney Davon Adkins appeals his convictions for burglary of a building, two offenses of aggravated robbery with a deadly weapon, and two offenses of robbery. In two issues, appellant contends the sentences violate his constitutional rights and are grossly disproportionate to the crimes and inappropriate to the offender. We modify the trial court's judgments and affirm as modified.

Appellant waived a jury and pleaded guilty to burglary of a building (05-16-00695-CR), aggravated robbery with a deadly weapon (05-16-00696-CR and 05-16-00698-CR), and robbery (05-16-00697-CR and 05-16-00699-CR). After finding appellant guilty, the trial court assessed punishment at 12 months' confinement in state jail for the burglary, 20 years' imprisonment for each robbery, and 30 years' imprisonment for each aggravated robbery. In two issues, appellant argues the sentences are proportionally unfair and in violation of the United States and Texas Constitutions. See U.S. CONST. amend. VIII, XIV; TEX. CONST. art. I, § 13. Appellant acknowledges the sentences are within the statutory punishment ranges, but asserts the punishment is severe in light of his "serious substance abuse issues and his lack of coping and life skills." Appellant asserts he should have received treatment rather than incarceration. The State responds that appellant failed to preserve the issues for appellate review, and the sentences are not unconstitutionally disproportionate because they are within the statutory punishment range for the offenses.

To preserve error for appellate review, the record must show appellant made a timely request, objection, or motion. See TEX. R. APP. P. 33.1(a)(1). Constitutional rights, including the right to be free from cruel and unusual punishment, may be waived. Rhoades v. State, 934 S.W.2d 113, 120 (Tex. Crim. App. 1996). Appellant did not object when he was sentenced, nor did he file a motion for new trial in these cases. Accordingly, he has not preserved the issues for appellate review. See Castaneda v. State, 135 S.W.3d 719, 723 (Tex. App.—Dallas 2003, no pet.).

Moreover, 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); see also Jackson v. State, 680 S.W.2d 809, 814 (Tex. Crim. App. 1984) (sentence will not be disturbed on appeal if it is within its statutory range of punishment). Burglary of a building is a state-jail felony offense punishable by confinement in a state jail facility for 180 days to 2 years and an optional fine not to exceed $10,000. See TEX. PENAL CODE ANN. §§ 12.35, 30.02(c)(1) (West 2011 & Supp. 2016). Robbery is a second-degree felony offense punishable by imprisonment for 2 to 20 years and an optional fine not to exceed $10,000. Id. §§ 12.33, 29.02(b) (West 2011). Aggravated robbery with a deadly weapon is a first-degree felony offense punishable by imprisonment for 5 to 99 years of life and an optional fine not to exceed $10,000. Id. §§ 12.32, 29.03(b). Appellant's sentences for 12 months in state jail and 20 and 30 years imprisonment are within the statutory punishment ranges for the offenses. We overrule appellant's issues.

The State asks us to modify the trial court's judgments to show appellant entered open guilty pleas and that the trial court made an affirmative deadly weapon finding in the two aggravated robbery cases. The record shows appellant entered open guilty pleas to the charges in the indictments. At sentencing, the trial court made affirmative deadly weapon findings in the aggravated robbery cases. The written judgments, however, reflect plea bargain terms in each case and shows "N/A" for findings on deadly weapon in the aggravated robbery cases. We agree with the State. We modify the section of each judgment entitled "Terms of Plea Bargain" to show "open." TEX. R. APP. P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27-28 (Tex. Crim. App. 1993); Estrada v. State, 334 S.W.3d 57, 63-64 (Tex. App.—Dallas 2009, no pet.). In the two aggravated robbery cases, we further modify the section of each judgment entitled "Findings on Deadly Weapon" to show "Yes, a Firearm."

As modified, we affirm the trial court's judgments.

/David L. Bridges/

DAVID L. BRIDGES

JUSTICE Do Not Publish
TEX. R. APP. P. 47
160695F.U05

JUDGMENT

On Appeal from the Criminal District Court No. 3, Dallas County, Texas
Trial Court Cause No. F14-16187-J.
Opinion delivered by Justice Bridges. Justices Lang-Miers and Evans participating.

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

The section entitled "Terms of Plea Bargain" is modified to show "Open."

As modified, we AFFIRM the trial court's judgment. Judgment entered June 27, 2017.

JUDGMENT

On Appeal from the Criminal District Court No. 3, Dallas County, Texas
Trial Court Cause No. F15-76857-J.
Opinion delivered by Justice Bridges. Justices Lang-Miers and Evans participating.

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

The section entitled "Terms of Plea Bargain" is modified to show "Open."

The section entitled "Findings on Deadly Weapon" is modified to show "Yes, a Firearm."

As modified, we AFFIRM the trial court's judgment. Judgment entered June 27, 2017.

JUDGMENT

On Appeal from the Criminal District Court No. 3, Dallas County, Texas
Trial Court Cause No. F16-70189-J.
Opinion delivered by Justice Bridges. Justices Lang-Miers and Evans participating.

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

The section entitled "Terms of Plea Bargain" is modified to show "Open."

As modified, we AFFIRM the trial court's judgment. Judgment entered June 27, 2017.

JUDGMENT

On Appeal from the Criminal District Court No. 3, Dallas County, Texas
Trial Court Cause No. F16-75194-J.
Opinion delivered by Justice Bridges. Justices Lang-Miers and Evans participating.

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

The section entitled "Terms of Plea Bargain" is modified to show "Open."

The section entitled "Findings on Deadly Weapon" is modified to show "Yes, a Firearm."

As modified, we AFFIRM the trial court's judgment. Judgment entered June 27, 2017.

JUDGMENT

On Appeal from the Criminal District Court No. 3, Dallas County, Texas
Trial Court Cause No. F16-75301-J.
Opinion delivered by Justice Bridges. Justices Lang-Miers and Evans participating.

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

The section entitled "Terms of Plea Bargain" is modified to show "Open."

As modified, we AFFIRM the trial court's judgment. Judgment entered June 27, 2017.


Summaries of

Adkins v. State

Court of Appeals Fifth District of Texas at Dallas
Jun 27, 2017
No. 05-16-00696-CR (Tex. App. Jun. 27, 2017)
Case details for

Adkins v. State

Case Details

Full title:COURTNEY DAVON ADKINS, Appellant v. THE STATE OF TEXAS, Appellee

Court:Court of Appeals Fifth District of Texas at Dallas

Date published: Jun 27, 2017

Citations

No. 05-16-00696-CR (Tex. App. Jun. 27, 2017)