No. 05-09-00516-CRCourt of Appeals of Texas, Fifth District, Dallas.
Opinion Filed March 31, 2010. DO NOT PUBLISH Tex. R. App. P. 47.
On Appeal from the 195th Judicial District Court Dallas County, Texas, Trial Court Cause No. F07-11141-HN.
Before Justices O’NEILL, LANG, and MYERS.
OPINION
Opinion By Justice O’NEILL.
Charles Allen O’Neal appeals following his adjudication for sexual assault of a child. In two issues, appellant contends the sentence is grossly disproportionate to the offense and inappropriate to the offender in violation of the United States and Texas Constitutions See U.S. Const. Amend. VIII, XIV; Tex. Const. Art. I, § 13. We affirm the trial court’s judgment as modified.
Background
Appellant waived a jury and pleaded guilty to sexual assault of a child. Pursuant to a plea agreement, the trial court deferred adjudicating guilt, placed appellant on eight years’ community supervision, and assessed a $1500 fine. The State later moved to adjudicate, alleging appellant violated the terms of his community supervision. Appellant pleaded true to the allegations in a hearing on the motion. The trial court found the allegations true, adjudicated appellant guilty, and assessed punishment at sixteen years’ imprisonment.
Disproportionate Sentence
Appellant contends the sentence is grossly disproportionate and severe because he has now obtained a good job and has moral support from several individuals. Appellant asserts the trial court had several options other than incarceration, and he should have been given the opportunity to show that he could comply with the terms of community supervision. The State responds that appellant failed to preserve his complaints for appellate review, and the sentence is not disproportionate to the offense and circumstances.
Appellant did not complain about the sentence either at the time it was imposed or in his motion for new trial. See
Tex. R. App. P. 33.1(a)(1); Castaneda v. State, 135 S.W.3d 719, 723 (Tex. App.-Dallas 2003, no pet.) (for error to be preserved for appeal, the record must show appellant made a timely request, objection, or motion). After sentencing, appellant did not object to the sentence, and his motion for new trial complained that the verdict was contrary to the law and the evidence. Thus, appellant has not preserved this issue for our review.
Even if appellant had preserved error, however, his arguments still fail. As a general rule, punishment that is assessed within the statutory range for the offense is not excessive or unconstitutionally cruel or unusual. Kirk v. State, 949 S.W.2d 769, 772 (Tex. App.-Dallas 1997, pet. ref’d). In this case, the trial court imposed punishment within the statutory range for the offense. See
Tex. Penal Code Ann. §§ 12.33, 22.011(a)(2)(A) (Vernon 2003 Supp. 2009); see also Jackson v. State, 680 S.W.2d 809, 814 (Tex. Crim. App. 1984) (as long as a sentence is within the proper range of punishment, it will not be disturbed on appeal). We resolve appellant’s two issues against him.
Modify Judgment
We note the record shows the trial court did not orally pronounce a fine when it adjudicated appellant guilty and imposed the sixteen-year sentence. The trial court’s judgment, however, recites a $1500 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 modify the trial court’s judgment to delete the $1500 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.