Ramirez, Lewis Ansermo v. State

Opinion

Affirmed as Modified; Opinion Filed September 24, 2012.

In The QL111rt nf Apprt1i FiftIi Oitrirt øf cxa it Dattzu No. 05-12-00276-CR

LEWIS ANSERMO RAMIREZ, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 195th Judicial District Court Dallas County, Texas Trial Court Cause No. Fl 1-60500-N

MEMORANDUM OPINION Before Justices O’Neill, FitzGerald, and Lang-Miers Opinion By Justice Lang-Miers

Lewis Ansermo Ramirez waived a jury and pleaded guilty to aggravated robbery with a

deadly weapon, a knife. See TEX. PENAL CODE ANN. § 29.03(a) (West 201 1). The trial court

assessed punishment at ten years’ imprisonment. In two issues, appellant contends the trial court

abused its discretion by sentencing him to imprisonment and the judgment should be modified to

reflect the correct date of the offense. We modify the trial court’s judgment and affirm as modified.

The background of the case and the evidence 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 issue, appellant contends the trial court abused its discretion by sentencing him

to imprisonment because the punishment violates the obiectives of the penal code Appellant asserts .

that because he did not plan the offense and “merely only acted on impulse,” he had never committed

any crime prior to this offimse, and he was a good candidate for probation. the trial court should not

have assessed a ten-year prison term, The State responds that appellant failed to preserve this issue

for appellate review and, alternatively, the record does not show the sentence violates the ohective

of the penal code.

Appellant did not complain about the sentence either at the time it was imposed or in a

motion for new trial. See TEx, R. App, P. 33. l(a)(t); Castaneda v. State, 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 for 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). The punishment range for aggravated robbery with a deadly

weapon, a first-degree felony offense, is five to ninety-nine years or life imprisonment. See TEX.

PENAL CODE ANN. § 12.32, 29.03(b). Appellant’s ten-year sentence is at the lower end of the statutory range.

We conclude the trial court did not abuse its discretion by assessing the ten-year sentence.

See Jackcon v. State. 680 S.W.2d 809, 814 (Tex. Crim. App. 1984). We overrule appellant’s first

issue.

In his second issue, appellant contends the judgment should be modified to reflect the correct

date of the offense. The State agrees the judgment should be modified to reflect the actual date of

the offense. Uhe record shows appellant committed the offense on September 30, 201 I Fhe )udgment,

however, recites the ottense date is January 26, 2012, and the judgment is incorrect. We sustain

appellant’s second issue. We modify the trial court’s judgment to show the offense date was

September 30, 2011 See TEX. R. App. P. 43.2(b); Bigley v State, 865 S.W,2d 26, 27-28 (Tex. Crim,

App. 1993); Asberrv v. State, 813 S.W.2d 526, 529-30 (Tex. App.—DalIas 1991, pet. retd).

As moditied, we affirm the trial court’s judgment.

Do Not Publish TEx. R. APP. P. 47 I 20276F.U05

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JUDGMENT LEWIS ANSERMO RAMIREZ, Appellant Appeal from the 195th Judicial District Court of Dallas County, Texas. (Tr.CtNo. No. 05-12-00276-CR V. Fl 1-60500-N). Opinion delivered by Justice Lang-Miers, THE STATE OF TEXAS, Appellee Justices O’Neill and FitzGerald participating.

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

The section entitled “Date of Offense” is modified to show “9/30/11,”

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

Judgment entered September 24, 2012.

EL1Zi’t3ETH LANGM1ERS/ JUS-tICE