Opinion
No. 05-15-00975-CR No. 05-15-00976-CR No. 05-15-00977-CR
01-27-2016
RAVEN BERLINDA DUKES, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 194th Judicial District Court Dallas County, Texas
Trial Court Cause Nos. F15-13698-M, F14-51307-M, F14-51306-M
MEMORANDUM OPINION
Before Chief Justice Wright and Justices Lang and Brown
Opinion by Justice Brown
Raven Berlinda Dukes waived a jury and pleaded guilty to two offenses involving felony theft of property valued at less than $1,500 (cause nos. 05-15-00975-CR and 05-15-00977-CR) and an aggravated assault with a deadly weapon offense (cause no. 05-15-00976-CR). See TEX. PENAL CODE ANN. §§ 22.02(a)(2), 31.03(a) (West 2011 & Supp. 2015). Appellant also pleaded true to two enhancement paragraphs in each of the theft cases and one enhancement paragraph in the aggravated assault case. The trial court sentenced appellant to seven years' imprisonment on the thefts and fifteen years' imprisonment on the aggravated assault. In three issues, appellant contends the sentences violate her constitutional rights and the judgment in the aggravated assault case should be modified to correctly show her plea to the enhancement paragraph and the deadly weapon used. We modify the judgment in cause no. 05-15-00976-CR and affirm as modified. We affirm the judgments in cause nos. 05-15-00975-CR and 05-15-00977-CR.
Appellant argues the seven- and fifteen-year sentences are grossly disproportionate to the crimes and inappropriate to the offender, in violation of the United States and Texas Constitutions. See U.S. CONST. amend. VIII; TEX. CONST. art. I, § 13. Appellant asserts that because she committed the offenses only to support her drug addiction, the trial court should have granted her probation with drug treatment. The State responds that appellant did not preserve her complaints for appellate review and alternatively, the sentences are not grossly disproportionate to the crimes or inappropriate to the offender.
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 she was sentenced, nor did she file motions for new trial. Accordingly, she has not preserved the issue 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). The theft of property offenses for which appellant was convicted are state jail felony offenses. See TEX. PENAL CODE ANN. § 31.03(e)(4)(D) (West Supp. 2015). The punishment range was enhanced to that of a third-degree felony offense. The punishment range for a third- degree felony is imprisonment for two to ten years and an optional fine not to exceed $10,000. See id. §§ 12.34, 12.425(a). (West 2011 & Supp. 2015). Aggravated assault with a deadly weapon is a second-degree felony offense. The punishment range for the offense, enhanced by a prior felony conviction, is imprisonment for five to 99 years or life and an optional fine not to exceed $10,000. See id. §§ 12.32, 12.42(b), 22.02(b) (West 2011). Appellant's seven- and fifteen-year sentences are well within the statutory punishment ranges for the offenses. We overrule appellant's first two issues.
In her third issue, appellant contends the trial court's judgment in cause no. 05-15-00976-CR should be modified to correctly show her plea and the trial court's finding on the enhancement paragraph, and to show the trial court found the deadly weapon used was a knife. The State agrees the judgment should be modified as appellant requests.
The record shows appellant pleaded true to the enhancement paragraph contained in the indictment. The trial court found the enhancement paragraph true and made an affirmative finding that appellant used a knife during the commission of the offense. The judgment, however, states "N/A" for the plea to and findings on the enhancement paragraph. Further, regarding the deadly weapon finding, the judgment states "yes, not a firearm." We sustain appellant's third issue. We modify the trial court's judgment to show the plea to the first enhancement paragraph is "True," the finding on the first enhancement paragraph is "True," and the finding on the deadly weapon is "Yes, a Knife." 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).
In cause nos. 05-15-00975-CR and 05-15-00977-CR, we affirm the trial court's judgments. In cause no. 05-15-00976-CR, we affirm the trial court's judgment as modified. We order the trial court to enter a corrected judgment in cause no. 05-15-00976-CR reflecting these modifications.
/Ada Brown/
ADA BROWN
JUSTICE Do Not Publish
TEX. R. APP. P. 47 150975F.U05
JUDGMENT
Appeal from the 194th Judicial District Court of Dallas County, Texas (Tr.Ct.No. F15-13698-M).
Opinion delivered by Justice Brown, Chief Justice Wright and Justice Lang participating.
Based on the Court's opinion of this date, the trial court's judgment is AFFIRMED.
Judgment entered January 27, 2016.
JUDGMENT
Appeal from the 194th Judicial District Court of Dallas County, Texas (Tr.Ct.No. F14-51307-M).
Opinion delivered by Justice Brown, Chief Justice Wright and Justice Lang participating.
Based on the Court's opinion of this date, the trial court's judgment is MODIFIED as follows:
The section entitled "Findings on Deadly Weapon" is modified to show "Yes, a Knife."
The section entitled "Plea to 1st Enhancement Paragraph" is modified to show "True."
The section entitled "Findings on 1st Enhancement Paragraph" is modified to show "True."
Judgment entered January 27, 2016.
JUDGMENT
Appeal from the 194th Judicial District Court of Dallas County, Texas (Tr.Ct.No. F14-51306-M).
Opinion delivered by Justice Brown, Chief Justice Wright and Justice Lang participating.
Based on the Court's opinion of this date, the trial court's judgment is AFFIRMED.
Judgment entered January 27, 2016.