Demarcus Antonio Taylor v. State ( 2015 )

Affirmed as Modified and Opinion Filed November 25, 2015
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-15-00567-CR
DEMARCUS ANTONIO TAYLOR, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 282nd Judicial District Court
Dallas County, Texas
Trial Court Cause No. F14-57392-S
MEMORANDUM OPINION
Before Justices Fillmore, Myers, and Whitehill
Opinion by Justice Whitehill
A jury convicted Demarcus Antonio Taylor of possession with intent to deliver cocaine
in an amount of four grams or more but less than 200 grams in a drug-free zone. See TEX.
HEALTH & SAFETY CODE ANN. §§ 481.112(a), (d), 481.134(a) (West 2010 & Supp. 2015). The
jury also found that appellant used or exhibited a firearm during the commission of the offense.
The jury assessed punishment at thirty years’ imprisonment and a $5,000 fine. In a single issue,
appellant contends that the sentence is excessive and disproportionate for the offense. We
modify the judgment and affirm the judgment as modified.
Appellant argues the thirty-year sentence is disproportionate and constitutes cruel and
unusual punishment prohibited by the United State and Texas Constitutions. See U.S. CONST.
amend. VIII; TEX. CONST. art. I, § 13. Appellant asserts that because he did not resist the police
in any way and immediately surrendered, the thirty-year sentence is excessive. The State
responded that appellant has failed to preserve this issue for appellate review and alternatively,
the sentence is not grossly disproportionate to the crime.
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, and
his motion for new trial did not raise this complaint. Accordingly, he 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) (sentence will not be disturbed on appeal if it is within its statutory range of punishment).
The punishment range for the offense of possession with intent to deliver cocaine in an amount
four grams or more but less than 200 grams in a drug-free zone, a first-degree felony offense, is
imprisonment for life or for any term not more than ninety-nine years nor less than ten years, and
an optional fine up to $20,000. See TEX. PENAL CODE ANN. § 12.32 (West 2011); TEX. HEALTH
& SAFETY CODE ANN. §§ 481.112(d), 481.134(c). Appellant’s thirty-year sentence is well within
the statutory range. We overrule appellant’s issue.
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We note the trial court’s judgment erroneously omits the $5,000 fine. The jury assessed a
$5,000 fine and trial court orally pronounced the fine when it sentenced appellant in accordance
with the jury’s verdict. When a variation between the oral pronouncement of the sentence and
the written memorialization of the sentence exists, the oral pronouncement controls. See Coffey
v. State, 979 S.W.2d 326, 329 (Tex. Crim. App. 1998).
We also note the judgment states the statute for the offense is “481.134 Health and Safety
Code,” which defines drug-free zones. Appellant was convicted for possession with intent to
deliver cocaine in a drug-free zone, pursuant to section 481.112 and 481.134 of the Texas Health
and Safety Code. See TEX. HEALTH & SAFETY CODE ANN. §§ 481.112(a), 481.134(a)(3).
Accordingly, we modify the judgment to include the $5,000 fine and modify the section
entitled “statute for offense” to show “481.112, 481.134 Health and Safety Code.” 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).
We affirm the trial court’s judgment as it is modified.
Do Not Publish
TEX. R. APP. P. 47
150567F.U05
/Bill Whitehill/
BILL WHITEHILL
JUSTICE
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Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
DEMARCUS ANTONIO TAYLOR, Appeal from the 282nd Judicial District
Appellant Court of Dallas County, Texas (Tr.Ct.No.
F14-57392-S).
No. 05-15-00567-CR V. Opinion delivered by Justice Whitehill,
Justices Fillmore and Myers participating.
THE STATE OF TEXAS, Appellee
Based on the Court’s opinion of this date, the trial court’s judgment is MODIFIED as
follows:
The section entitled “Statute for Offense” is modified to show “481.112, 481.134 Health
and Safety Code.”
The section entitled “Fine” is modified to show “$5,000.”
As modified, we AFFIRM the trial court’s judgment.
Judgment entered November 25, 2015.
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