Opinion
No. 05-11-01130-CR
03-28-2012
ANDRELL DESHON NEWMAN, Appellant v. THE STATE OF TEXAS, Appellee
AFFIRM as MODIFIED and Opinion Filed March 28, 2012
On Appeal from the 203rd Judicial District Court
Dallas County, Texas
Trial Court Cause No. F10-25311-P
MEMORANDUM OPINION
Before Justices Moseley, Lang-Miers, and Murphy
Opinion By Justice Murphy
Andrell Deshon Newman waived a jury and pleaded guilty to aggravated robbery with a deadly weapon, a firearm. See Tex. Penal Code Ann. § 29.03(a)(2) (West 2011). After finding appellant guilty, the trial court assessed punishment at twelve years' imprisonment. In two points of error, appellant contends the trial court's unwillingness to consider the full range of punishment deprived him of due process and the written judgment should be modified to delete the fine. We modify the trial court's judgment and affirm as modified. We issue this memorandum opinion pursuant to Texas Rule of Appellate Procedure 47.4 because the law to be applied in the cases is well settled. Due Process
In his first point of error, appellant contends the trial court's remarks reflect a clear bias against considering probation and, thus, the trial court violated his due process rights. Appellant points to remarks by the trial court explaining why probation was not appropriate. The State responds that appellant has not preserved this issue for appellate review and, alternatively, the record does not show the trial court failed to consider all the evidence or the full range of punishment.
Appellant never objected or contended the trial court did not consider the full range of punishment before imposing the twelve-year sentence. He did not object to the sentence, and he did not file a motion for new trial raising any of the concerns asserted in his first point of error. Thus, appellant has not preserved any complaint. See Tex. R. App. P. 33.1(a)(1); Castaneda v. State, 135 S.W.3d 719, 723 (Tex. App.-Dallas 2003, no pet.) (timely request, objection, or motion required to preserve issue for appeal).
We also conclude a complaint the trial court failed to consider all of the evidence or the full range of punishment would be without merit. The trial court imposed punishment within the statutory range for the first-degree felony offense of aggravated robbery. See Tex. Penal Code Ann. §§ 12.32(a), 29.03(b). As a general rule, 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).
The record also shows the trial court recessed the punishment hearing to allow time to consider the appropriate punishment. The trial court considered assessing a thirty-year sentence in this case, but declined to do so after taking into consideration mitigating testimony from the complainant's spouse. The trial court ultimately assessed punishment of twelve years, which is at the low end of the range. We overrule appellant's first point of error. Judgment Modification
In his second point of error, appellant asks us to delete the fine that was not orally pronounced. The State agrees to the modification requested by appellant.
The record shows the trial court did not orally pronounce a fine when it found appellant guilty and imposed the twelve-year sentence. The trial court's judgment, however, recites a $2,500 fine. When a conflict exists between the oral pronouncement and the written judgment, the oral pronouncement controls. See Coffey v. State, 979 S.W.2d 326, 328 (Tex. Crim. App. 1998). We sustain appellant's second point of error. We modify the trial court's judgment to delete the $2,500 fine. 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 judgment.
MARY MURPHY
JUSTICE
Do Not Publish
Tex. R. App. P. 47
111130F.U05
S Court of Appeals Fifth District of Texas at Dallas JUDGMENT
ANDRELL DESHON NEWMAN, Appellant
V.
THE STATE OF TEXAS, Appellee
No. 05-11-01130-CR
Appeal from the 203rd Judicial District Court of Dallas County, Texas. (Tr.Ct.No. F10- 25311-P).
Opinion delivered by Justice Murphy, Justices Moseley and Lang-Miers 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 "N/A."
As modified, we AFFIRM the trial court's judgment.
Judgment entered March 28, 2012.
MARY MURPHY
JUSTICE