Opinion
No. 05-11-01006-CR
03-28-2012
RICHARD HARRIS, Appellant v. THE STATE OF TEXAS, Appellee
AFFIRM and Opinion Filed March 28, 2012
On Appeal from the Criminal District Court No. 3
Dallas County, Texas
Trial Court Cause No. F11-31057-J
MEMORANDUM OPINION
Before Justices Morris, Fillmore, and Myers
Opinion By Justice Fillmore
Richard Harris waived a jury and pleaded guilty to theft of property valued less than $1,500, having two prior theft convictions. See Tex. Penal Code Ann. § 31.03(a), (e)(4)(D) (West 2011). He also pleaded true to two enhancement paragraphs alleged in a separate notice of intent to seek enhancement. The trial court assessed punishment at four years' imprisonment and a $500 fine. In a single issue, Harris contends the trial court abused its discretion by sentencing him to imprisonment. We affirm. The background of the case and the evidence admitted at trial are well known to the parties, and we therefore limit recitation of the facts. We issue this memorandum opinion pursuant to Texas Rule of Appellate Procedure 47.4 because the law to be applied in the case is well settled. In his sole issue, Harris contends the trial court abused its discretion by sentencing him to imprisonment because the punishment violates the objectives of the penal code and is not necessary to prevent recurrence of his criminal behavior. More specifically, Harris asserts that his behavior is influenced by a history of mental illness, for which he receives medication, and alcohol issues, and that under the circumstances, incarceration is punitive and does not further the penal code goal of rehabilitation. The State responds that Harris has not preserved his complaint for appellate review and, alternatively, the record does not show the sentence violates the objectives of the penal code.
Harris did not complain about his sentence at the time it was assessed. See Tex. R. App. P. 33.1(a)(1)(A) (requiring timely and specific request, objection, or motion to trial court as prerequisite to presenting appellate complaint); Castaneda v. State, 135 S.W.3d 719, 723 (Tex. App.-Dallas 2003, no pet.). Although Harris raised his complaint in a motion for new trial, there is nothing in the record showing Harris brought his motion to the trial court's attention. See Tex. R. App. P. 21.6; Carranza v. State, 960 S.W.2d 76, 78-79 (Tex. Crim. App. 1998) (complaint raised in motion for new trial not preserved unless motion is presented to trial court). The rules of appellate procedure require a defendant to "present" a motion for new trial to the trial court within specified time limits. Tex. R. App. P. 21.6. To satisfy the presentment requirement, a defendant must actually deliver the motion for new trial to the trial court or otherwise bring the motion to the attention of the trial court. See Carranza, 960 S.W.2d at 78-79 (merely filing motion for new trial is not sufficient evidence of its presentment to trial court); see also Gardner v. State, 306 S.W.3d 274, 305 (Tex. Crim. App. 2009). Presentment must be apparent from the record, and it may be shown by such proof as the judge's signature or notation on the motion or proposed order, an entry on the docket sheet showing the motion was brought to the trial court's attention, or the setting of a hearing on the motion. See Gardner, 306 S.W.3d at 305; see also Carranza, 960 S.W.2d at 79-80 (providing non-exhaustive list as to how presentment requirement may be fulfilled).
Here, Harris's motion for new trial includes a proposed form order that bears no notations by the trial court. The trial court's docket sheet contains no reference to the motion for new trial, and the record contains no evidence of the setting of a hearing or any other indication the trial court had actual knowledge of the motion. Therefore, because Harris did not object to his sentence when it was imposed or present his motion for new trial to the trial court, we conclude Harris has not preserved this point of error for appellate review. See Castaneda, 135 S.W.3d at 723; Carranza, 960 S.W.2d at 79.
But even if Harris had preserved his complaint for appellate review, it would not be meritorious. As a general rule, a sentence that is assessed within the punishment range for the offense is neither cruel, unusual, nor excessive, and complies with the objectives of the Texas Penal Code. Castaneda, 135 S.W.3d at 723; Carpenter v. State, 783 S.W.2d 232, 232-33 (Tex. App.-Dallas 1989, no pet.). Theft of property valued less than $1500, having two prior theft convictions, is a state-jail felony. The trial court found the two enhancement paragraphs true, making the offense punishable as a third-degree felony. See Tex. Penal Code Ann. § 12.425(a) (West Supp. 2011). The punishment range for a third-degree felony is two to ten years' imprisonment and an optional fine of up to $10,000. Harris's four-year sentence was within the statutory range. On this record, we conclude the trial court did not abuse its discretion by assessing the four-year sentence. See Jackson v. State, 680 S.W.2d 809, 814 (Tex. Crim. App. 1984).
See Act of April 23, 2009, 81st Leg., R.S., ch. 87, § 25.150, 2009 Tex. Gen. Laws 373 (amended 2011) (current version at Tex. Penal Code Ann. § 12.425(a) (West Supp. 2011). Effective September 1, 2011, the enhancement provisions for state jail felonies were removed from section 12.42 and a new section was created at 12.425. Because this did not change the enhancement language of the statute, for purposes of simplicity, we will cite to the new section. See Act of May 25, 2011, 82nd Leg., R.S., ch. 834, § 5, 2011 Tex. Sess. Law Serv. 2105 (West) (to be codified as Tex. Penal Code Ann. § 12.425(a)).
We resolve Harris's sole issue against him and affirm the trial court's judgment.
ROBERT M. FILLMORE
JUSTICE
Do Not Publish
Tex. R. App. P. 47
111006F.U05
Court of Appeals Fifth District of Texas at Dallas JUDGMENT
RICHARD HARRIS, Appellant
V.
THE STATE OF TEXAS, Appellee
No. 05-11-01006-CR
Appeal from the Criminal District Court No. 3 of Dallas County, Texas. (Tr.Ct.No. F11- 31057-J).
Opinion delivered by Justice Fillmore, Justices Morris and Myers participating.
Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED.
Judgment entered March 28, 2012.
ROBERT M. FILLMORE
JUSTICE