Bailey, Tenesia v. State

Opinion

MODIFIED, and AFFIRM; Opinion issued October 29, 2012.

In The Qtnurt Lit !Fiffl! Thtnrt øt rxa at a1tu No, 05-1 2-001 88-CR No, 05-12-00189-CR No. 05-12-00190-CR____

TENESIA SIIANNETT E BAILEY, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 203rd Judicial District Court Dallas County, Texas Trial Court Cause Nos._F05-53405-P, F05-53406-P, F05-53407-P

MEMORANDUM OPINION

Before Justices Morris, Francis, and Murphy Opinion By Justice Murphy

Tenesia Shannette Bailey appeals from her convictions tbr aggravated robbery with a

deadly weapon and aggravated kidnapping. In a single issue, appellant contends the trial court

abused its discretion by sentencing her to imprisonment in each case. We affirm the trial court’s

judgments. We issue this memorandum opinion pursuant to Texas Rule of Appellate Procedure

47.4

Appellant waived a jury and pleaded guilty to one aggravated robbery with a deadly

weapon, a crowbar, offense and two aggravated kidnapping offenses. See TEx. PENAL CODE § 20.04(a), 29.03(a) (West 201 1). Pursuant to a plea agreement in each case, the trial court

deterred adjudicating guilt, placed appellant on ten years’ community supervision, and assessed a

$ I ,500 fine in one of the aggravated kidnapping cases. The State later moved to adjudicate guilt,

alleging appellant violated the terms of her community supervision. Appellant pleaded not true

to the allegations. The trial court fliund the allegations true, adjudicated appellant guilty, and

assessed punishment at eight years’ imprisonment in each case.

Appellant contends the trial court abused its discretion by sentencing her to imprisonment

because the punishment violates the objectives of the penal code. Appellant asserts that because

she believed she could send in her reports by mail due to her health problems, and only went to

Minnesota without notifying the probation department due to her health problems, the trial court

should have continued her on community supervision rather than assess eight-year prison terms.

The State responds that appellant failed to preserve this issue for appellate review and,

alternatively, the record does not show the sentences violate the objectives of the penal code.

Appellant did not complain about the sentences either at the time they were imposed or in

motions for new trial .5cc TEx. R. App. P. 33.l(a)( I); Casianeda v. S/ate, 135 S.W.3d 719, 723

(Tex. App.—-Dallas 2003, no pet.) (to preserve error, appellant must make a timely request,

objection, or motion). As a result, appellant has not preserved the issue tbr our review.

Additionally, 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 (Tex. App.—Dallas 1997, pet. ref d). Each offense for which appellant was convicted was a

first-degree felony with a punishment range of five to ninety-nine years or life imprisonment,

and a fine of up to $10,000. See TEX. PENAL CODE ANN. §‘ 12.32, 20.04(e), 29.03(b).

-2- Appellant’s eightyear sentences are at the lower end of the statutory range for the offenses. We

overrule appellant’s sole issue.

Although the record shows appellant pleaded not true to the motion to adjudicate in each

case, the judgments state appellant pleaded true to the motions. Thus, the judgments are

incorrect. We modify the judgments to show appellant pleaded not true to each motion to

adjudicate. See TEx, R. APP. P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27—28 (Tex. Crim. App.

1993): ;lsbern v. State. 813 SW.2d 526, 529—3() (Te, App.—Dal1as 1991, pet. ret’d).

As modified, we affirm the trial court’s judgments.

/11 /A4 //4 JUSTICE

Do Not Publish TEx. R. App. 47 ,

1201 $$F.U05 (&ourt of ppta1 jfifti itrict of Icxa at Oa11a

JUDGMENT

TENESIA SHANNETTE BAILEY, Appeal from the 203rd Judicial District Appellant Court of Dallas County, Texas (Tr.Ct.No. F05-53405P). No. 05-12-001 8-CR V. Opinion delivered by Justice lvi urphy, Justices Morris and Francis participating. THE STATE OF TEXAS, Appellee

Based on the Court’s opinion of this date, the trial court’s judgment is MODIFIED as foil ows:

The section entitled “Plea to Motion to Adjudicate” is modified to show “Not True.”

As modified, we AFFiRM the trial court’s judgment.

Judgment entered October 29, 2012.

I I

I

MARYM RPHY JUSTICE QEourt of (ppia1 jf iftij 3itrtrt of !tcxa at OaIta JUDGMENT

TENESIA SI-IANNETTE BAILEY. Appeal from the 2()3rd Judicial District Appellant Court of Dallas County, Texas (Tr.Ct.No. F05-5340&-P). No. 05-1200l 89CR Opinion delivered by Justice Murphy, Justices Morris and Francis participating. TIlE STATE OF TEXAS, Appellee

Based on the Court’s opinion of this date, the trial court’s judgment is MO1)IFIED as foil ows:

Thc scction entitled “Plea to Motion to Adjudic ite” is modified to show “Not 1 rue”

As modified. we AFFI RN’I the trial court’s judgment.

I i. / / 1 .1 i ii . i /7 j /7/ J I —

MARY MURPHY JUSTICE I QLotart of Ztpptat fifllj Oitrart of Z1rtxa at a11a JUDGMENT

TENESIA SlIANNET1’E 13AILEY. Appeal from the 203rd Judicial District 1\i)pellant Court of Dallas County, Texas (Tr.Ct.No. F05 -5 3407-P). No. 05-12-001 90-CR V. Opinion delivered by Justice Murphy, Justices Morris and Francis participating. THE STATE OF TEXAS, Appcllee

Based on the Court’s opinion of this date, the trial court’s judgment is MODIFIEL) as follows:

The section entitled “Plea to Motion to Adjudicate” is modified to show “Not True.”

MARY M1JPHY i 4 JUSTICE