Clark, Eric Bell v. State ( 2012 )

MO1NFIE13, and AFFIRM; Opinion issued September 19 2012.
in The
QLlnrt uf Apprals
Fift1! Oitrirt uf at tIaIla!.i
No. 05-11-01649-CR
ERIC BELL CLARK, Appellant
V.
THE Si ATE OF 1EXAS, Appellec
On Appeal from the Criminal District Court No. 4
Dallas County, Texas
Trial Court Cause No. Fl 1—70569—K
MEMORANDUM OPINION
Before Justices Bridges, Richter. and Lang
Opinion By Justice Richter
Eric Bell Clark waived ajury and pleaded guilty to aggravated robbery with
a deadly weapon,
a handgun. See TEx. PEN\L CoDE ANN. § 29.03(a) (West 2011). The trial court assessed
punishment at twenty years imprisonment and a S 1,000 fine. In two points
of error, appellant
contends the trial court abused its discretion by sentencing him to imprisonmen
t and the judgment
should be modified to reflect the correct name of the presiding judge. We
modify the trial court’s
judgment and affirm as moditied. The background of the case and the eviden
ce 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 first point ofentr. appellant contends the trial court abused its discretion by senten
cing
hint to imprisonment because the punishment violates the objectives of the penal code.
Appellant
asserts he was on drugs at the time he committed the offense and only wanted money to
feed his drug
addiction. Appellant argues that because the punishment fails to address his longstanding
drug and
alcohol addiction, he should have received drug treatment rather than a twenty-year prison
tenn. The
State responds that appellant tbiled to preserve this issue for appellate review and, alterna
tively, the
record does not show the sentence violates the objective of the penal code.
Appellant did not complain about the sentence either at the time it was imposed or
in a
motion 1kw new trial. See flx. It App. P.33.1 (aX 1); Castaneda v. State, 135 S.W.3d 719,72
3 (Tex.
App.—Dallas 2003, no pet.) (to preserve error, appellant must make a timely reques
t, objection. or
motion). Thus, appellant has not preserved the issue for our review.
Moreover, as a general rule, punishment that is assessed within the statutory range
for an
offense is not excessive or unconstitutionally cruel or unusual. Kirk v. State, 949
S.W.2d 769,772
(‘rex. App.—Dallas 1997, pet refd). The punishment range for aggravated robber
y with a deadly
weapon, a first-degree felony offense, is five to ninety-nine years or life imprisonmen
t See Thx.
PENAL CODE ANN. ft 12.32.29.03(b). Appellant’s twenty-year sentence
is on the lower end ofthe
statutory range.
We conclude the trial court did not abuse its discretion by assessing the twenty-year senten
ce.
See Jackson v. State, 680 S.W.2d 809,814 (Tex. Crim. App. 1984). We overrule
appellant’s first
point of error.
In his second point of error, appellant contends the judgment should be modified
to reflect
the correct name ofthe presidingjudge. The State agrees the judgment should be modifi
ed to reflect
the name of the judge who actually presided over the proceedings.
—2—
The record shows the Honorable John Creuzot presided over the proceedings. Thejud
gment,
hovcu tdLfltitIs thL I lonoi iblt. I c.wis th pTLsIdIn JudgL
(11a.IL is 1 bus thL udgmcnt is
incorrect. We sustain appellant’s second point ot error. We modify the trial court’s judgment to
sho the presiding juthzc is thc llonoiahle John Criuzot S [i\ R A1P P 4 2(b) BnIei i.
State, 865 S.W.2d 26, 27—28 (Tex. Crim, App. 1993); Asberrv v State, 813 S.W.2d 526,
5293O
(Tex. App.—Da11as 1991, pet. ref d).
As modified, we affirm the trial court’s judgment.
ICE
Do Not Publish
Tix. R. App. P. 47
1 ii 649F. U05
—3—
(nurt uf App cah
Fif11i 3iitrict 01 cxa tt 1at1a.i
JUDGMENT
ERIC RFU. CLARK. AppeHant Appeal from the Criminal District Court
No. 4 of Dallas County, Texas, (Tr.CLNo.
No. 05-I 1-01649-CR V. Fl 1-70569-K).
Opinion delivered by Justice Richter,
THE STATE OF TEXAS, Appellee Justices Bridges and Lang participating.
Based on the Court’s opinion of this date, the judgment of the trial court is MODI
FIED
as follows:
The section entitled “Judge Presiding’ is modified to show “Hon. John Creuzo
t.”
As modified w AFFIRM thc trial court’s judgment
Judgment entered September 1,2012.
AlII