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Banks v. State

Court of Appeals of Texas, Fifth District, Dallas
May 7, 2008
No. 05-07-00467-CR (Tex. App. May. 7, 2008)

Opinion

No. 05-07-00467-CR

Opinion issued May 7, 2008. DO NOT PUBLISH. Tex. R. App. P. 47.

On Appeal from the 265th Judicial District Court Dallas County, Texas, Trial Court Cause No. F06-30040-WR.

Before Justices WRIGHT, BRIDGES, and MAZZANT.


OPINION


Gregory Glenn Banks waived a jury and pleaded guilty to possession with intent to deliver cocaine in an amount of one gram or more but less than four grams. See Tex. Health Safety Code Ann. § 481.112(a), (c) (Vernon 2003). The trial court assessed punishment, enhanced by two prior convictions, at twenty-five years' imprisonment. In five issues, appellant contends the sentence is illegal, he was denied his right of allocution under common law and article 42.07, the trial court's judgment does not award correct back time credit, and the cumulative effect of above errors warrants a reversal. We affirm the trial court's judgment. In his first issue, appellant argues his twenty-five-year sentence is illegal because it was improperly enhanced. Appellant asserts that because a state jail felony cannot be used to enhance punishment, and there is no showing the prior convictions alleged were not state jail felonies, the sentence is outside the punishment range for the offense. The State responds appellant has failed to show the prior convictions were state jail felonies. The punishment range for possession with intent to deliver cocaine, enhanced by two prior non-state-jail felony convictions, is imprisonment for a term of twenty-five to ninety-nine years or life imprisonment. See Tex. Penal Code Ann. § 12.42(d) (Vernon 2003). Appellant pleaded true to two enhancement paragraphs. Appellant's signed judicial confession and stipulation of evidence is included in the record. During the proceedings, appellant testified he understood that because of his prior felony convictions, the punishment range was from twenty-five to ninety-nine years or life imprisonment. Nothing in the record shows the prior convictions involved state jail felonies. Accordingly, we resolve appellant's first issue against him. In his second and third issues, appellant argues he was denied his common law and statutory rights of allocution because the trial judge did not ask if appellant had anything to say before the sentence was imposed. The State responds appellant failed to preserve error for appellate review and, alternatively, the trial court did not deny appellant his rights to allocution. Article 42.07 provides that before sentencing, the trial court shall ask a defendant whether he has anything to say as to why the sentence should not be pronounced against him. See Tex. Code Crim. Proc. Ann. art. 42.07 (Vernon 2006). Appellant did not complain about not being asked to say why the sentence should not be pronounced either at the time the sentence was imposed or in a motion for new trial. See Tex. R. App. P. 33.1(a)(1). By failing to bring this issue before the trial court by proper objection or motion, appellant has waived any perceived error. See id.; Tenon v. State, 563 S.W.2d 622, 623-24 (Tex.Crim.App. [Panel Op.] 1978). Moreover, the right of allocution under article 42.07 applies to legal reasons sentences should not be imposed. Appellant does not assert any legal reasons exist that prohibited sentencing. We resolve appellant's second and third issues against him. In his fourth issue, appellant argues the trial court's judgment does not properly award him back time credit for two additional dates. Appellant asserts he is entitled to receive back time credit for November 9 and 10, 2006. The State responds appellant has not shown he is entitled to extra back time credit. Appellant is entitled to receive credit on his sentence for the time he has spent in jail for this case from the time of his arrest and confinement until his sentence is imposed. See Tex. Code Crim. Proc. Ann. art. 42.03, § 2(a)(1) (Vernon 2003). The record shows the offense occurred "on or about November 9, 2006." The trial court's judgment recites a back time credit from November 11, 2006, the date appellant signed an affidavit of indigence, to March 30, 2007, the date sentence was imposed. During the sentencing hearing, appellant testified he was at a parole office being arrested on a parole violation from another case when authorities found he was in possession of the cocaine. Appellant contends there is an inference he was in jail on November 9, 2006 and November 10, 2006 while this case was pending. However, there is nothing in the record that shows appellant was actually in jail on this case on those dates. Thus, we conclude the record does not support his complaint. We resolve appellant's fourth issue against him. Having concluded no error exists in his first four issues, we likewise conclude there is no cumulative error requiring reversal. We resolve the fifth issue against appellant. We affirm the trial court's judgment.


Summaries of

Banks v. State

Court of Appeals of Texas, Fifth District, Dallas
May 7, 2008
No. 05-07-00467-CR (Tex. App. May. 7, 2008)
Case details for

Banks v. State

Case Details

Full title:GREGORY GLENN BANKS, Appellant v. THE STATE OF TEXAS, Appellee

Court:Court of Appeals of Texas, Fifth District, Dallas

Date published: May 7, 2008

Citations

No. 05-07-00467-CR (Tex. App. May. 7, 2008)