Opinion
No. 05-16-00765-CR
05-23-2017
TIMOTHY GREEN, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 363rd Judicial District Court Dallas County, Texas
Trial Court Cause No. F15-75395-W
MEMORANDUM OPINION
Before Justices Francis, Brown, and Schenck
Opinion by Justice Brown
Timothy Green appeals his conviction for murder. In three issues, appellant contends his life sentence violates his constitutional rights and is grossly disproportionate to the crime and inappropriate to the offender, and that the trial court's judgment should be modified to delete the $10,000 fine assessed by the jury. We modify the trial court's judgment and affirm as modified.
Appellant was indicted for the offense of capital murder, but the jury convicted appellant of the lesser-included offense of murder. During the punishment phase, appellant pleaded true to the two enhancement paragraphs contained in the indictment. The jury found the enhancement paragraphs true and assessed punishment at life imprisonment and a $10,000 fine.
In his first two issues, appellant argues the sentence is 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 sentence is within the punishment range, but asserts the punishment is severe in light of his "seriously deficient life skills." Appellant asserts the sentence is not supported by the underlying facts of the case. The State responds that appellant failed to preserve the issues for appellate review, and the sentence is not unconstitutionally disproportionate because it is within the statutory punishment range for the offense.
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 his motion for new trial address this complaint. 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). Murder 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. See TEX. PENAL CODE ANN. §§ 12.32, 19.02(a) (West 2011). However, because appellant was sentenced as a habitual offender, due to two prior felony convictions, the jury could punish him by imprisonment for life or for any prison term ranging from 25 to 99 years. See id. § 12.42(d) (West Supp. 2016). Appellant's life sentence is therefore within the statutory punishment range for the offense. We overrule appellant's first two issues.
In his third issue, appellant contends the trial court's judgment should be modified to delete the fine because it is not authorized by the habitual offender statute. The State agrees that the fine, although assessed by the jury, is not authorized and should be deleted from the judgment.
Appellant was sentenced as an habitual offender pursuant to section 12.42(d) of the Texas Penal Code. The habitual offender statute does not provide for the assessment of a fine. See id. Therefore, the fine is illegal and should be deleted. See Dolph v. State, 440 S.W.3d 898, 908 (Tex. App.—Texarkana 2013, pet. ref'd) (finding a sentence illegal which assessed a fine against the defendant who was sentenced pursuant to section 12.42(d)). Accordingly, we sustain appellant's third issue. We modify the judgment to delete the fine. See TEX. R. APP. P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27-28 (Tex. Crim. App. 1993) (courts of appeals have authority to modify a judgment); see also Estrada v. State, 334 S.W.3d 57, 63-64 (Tex. App.—Dallas 2009, no pet.).
As modified, we affirm the trial court's judgment.
/Ada Brown/
ADA BROWN
JUSTICE Do Not Publish
TEX. R. APP. P. 47 160765F.U05
JUDGMENT
On Appeal from the 363rd Judicial District Court, Dallas County, Texas
Trial Court Cause No. F15-75395-W.
Opinion delivered by Justice Brown. Justices Francis and Schenck participating.
Based on the Court's opinion of this date, the judgment of the trial court is MODIFIED as follows:
The section entitled "Fine" is modified to show "None."
As modified, we AFFIRM the trial court's judgment. Judgment entered this 23rd day of May, 2017.