Robert Thomas Thorn v. State

Opinion

MODIFY and AFFIRM; and Opinion Filed May 31, 2013.

In The Court of Appeals Fifth District of Texas at Dallas No. 05-12-01548-CR

ROBERT THOMAS THORN, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 363rd Judicial District Court Dallas County, Texas Trial Court Cause No. F11-22695-W

MEMORANDUM OPINION Before Justices O’Neill, Francis, and Fillmore Opinion by Justice O’Neill

Robert Thomas Thorn waived a jury and pleaded guilty to possession of

methamphetamine in an amount of four grams or more but less than 200 grams. See TEX.

HEALTH & SAFETY CODE ANN. § 481.115(a) (West 2010). The trial court assessed punishment at

imprisonment for eight years and one month. In three issues, appellant contends he was

improperly credited for the time he served and the sentence violates his constitutional rights

pursuant to the United States and Texas Constitutions. 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 second issue, appellant contends the sentence is grossly disproportionate to the

crime and inappropriate to the offender, in violation of the Eighth and Fourteenth Amendments

to the United States Constitution and Article I, Section 13 of the Texas Constitution. See U.S.

CONST. amend. VIII, XIV; TEX. CONST. art. I, § 13. Appellant asserts his longstanding drug

addiction and witness testimony that appellant is a “changed person” supports “appellant’s

position that long term incarceration is not the answer.”

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. 33.1(a)(1); Castaneda v. State, 135 S.W.3d 719, 723

(Tex. App.—Dallas 2003, no pet.). Thus, appellant has not preserved this issue for appellate

review.

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). Possession of methamphetamine in an amount of four grams or more but less than 200

grams is a second-degree felony offense punishable by imprisonment for two to twenty years,

and an optional fine not to exceed $10,000. See TEX. PENAL CODE ANN. § 12.33; TEX. HEALTH

& SAFETY CODE ANN. § 481.115(d). The evidence showed appellant was driving a vehicle that

was pulled over in a traffic stop, and officers found a bag containing methamphetamine inside

the vehicle. The trial court also heard testimony regarding appellant’s prior criminal history,

which included convictions for burglary of a habitation, unauthorized use of a motor vehicle,

failure to stop and render aid, credit card abuse, unlawful possession of a firearm by a felon, and

-2- failure to identify. Thus, we conclude the record does not support appellant’s complaint that the

sentence is disproportionate. We resolve appellant’s second issue against him.

In his first issue, appellant contends he is entitled to one additional day of back-time. The

record shows appellant was arrested on October 18, 2011, the date of the offense. The judgment

awards appellant a back-time credit from October 19, 2011 to October 10, 2012, the date the

sentence was imposed. Thus, the judgment is incorrect. We sustain appellant’s issue.

We modify the judgment to show the back-time credit is from October 18, 2011 to

October 10, 2012. 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.

/Michael J. O'Neill/ MICHAEL J. O'NEILL JUSTICE

Do Not Publish TEX. R. APP. P. 47

121548F.U05

-3- Court of Appeals Fifth District of Texas at Dallas

JUDGMENT

ROBERT THOMAS THORN, Appellant Appeal from the 363rd Judicial District Court of Dallas County, Texas (Tr.Ct.No. No. 05-12-01548-CR V. F11-22695-W). Opinion delivered by Justice O’Neill, THE STATE OF TEXAS, Appellee Justices Francis and Fillmore participating.

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

The section entitled “Time Credited” is modified to show “From October 18, 2011 to October 10, 2012.”

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

Judgment entered May 31, 2013.

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