Opinion
No. 05-12-00188-CR No. 05-12-00189-CR No. 05-12-00190-CR
10-29-2012
Tenesia SHANNETTE Bailey , Appellant v. The State of Texas, Appellee
MODIFIED, and AFFIRM;
On Appeal from the 203rd Judicial District Court
Dallas County, Texas
Trial Court Cause Nos . F05-53405-P , F05-53406-P, F05-53407-P
MEMORANDUM OPINION
Before Justices Morris, Francis, and Murphy
Opinion By Justice Murphy
Tenesia Shannette Bailey appeals from her convictions for aggravated robbery with a deadly weapon and aggravated kidnapping. In a single issue, appellant contends the trial court abused its discretion by sentencing her to imprisonment in each case. We affirm the trial court’s judgments. We issue this memorandum opinion pursuant to Texas Rule of Appellate Procedure 47.4.
Appellant waived a jury and pleaded guilty to one aggravated robbery with a deadly weapon, a crowbar, offense and two aggravated kidnapping offenses. See Tex. Penal Code §§ 20.04(a), 29.03(a) (West 2011). Pursuant to a plea agreement in each case, the trial court deferred adjudicating guilt, placed appellant on ten years’ community supervision, and assessed a $1,500 fine in one of the aggravated kidnapping cases. The State later moved to adjudicate guilt, alleging appellant violated the terms of her community supervision. Appellant pleaded not true to the allegations. The trial court found the allegations true, adjudicated appellant guilty, and assessed punishment at eight years’ imprisonment in each case.
Appellant contends the trial court abused its discretion by sentencing her to imprisonment because the punishment violates the objectives of the penal code. Appellant asserts that because she believed she could send in her reports by mail due to her health problems, and only went to Minnesota without notifying the probation department due to her health problems, the trial court should have continued her on community supervision rather than assess eight-year prison terms. The State responds that appellant failed to preserve this issue for appellate review and, alternatively, the record does 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.) (to preserve error, appellant must make a timely request, objection, or motion). As a result, appellant has not preserved the issue for our review.
Additionally, 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). Each offense for which appellant was convicted was a first-degree felony with a punishment range of five to ninety-nine years or life imprisonment, and a fine of up to $10,000. See Tex. Penal Code Ann. §§ 12.32, 20.04(c), 29.03(b). Appellant’s eight-year sentences are at the lower end of the statutory range for the offenses. We overrule appellant’s sole issue.
Although the record shows appellant pleaded not true to the motion to adjudicate in each case, the judgments state appellant pleaded true to the motions. Thus, the judgments are incorrect. We modify the judgments to show appellant pleaded not true to each motion to adjudicate. 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 judgments.
MARY MURPHY
JUSTICE
Do Not Publish
Tex. R. App. P. 47
120188F.U05
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
Based on the Court’s opinion of this date, the trial court’s judgment is MODIFIED as follows:
The section entitled “Plea to Motion to Adjudicate” is modified to show “Not True.”
As modified, we AFFIRM the trial court’s judgment.
Judgment entered October 29, 2012.
MARY MURPHY
JUSTICE