Affirmed as Modified; Opinion Filed November 14, 2012.
In The Qtourt of Zppeat ffiftb 3itrirt ot Z1texa at afta No. 05-12-00501-CR No. 05-12-00502-CR No. 05-12-00503-CR No. 05-12-00504-CR No. 05-12-00505-CR No. 05-12-00506-CR
REAHT LAKENDRIC SMITH A/K/A RIYADH SMITH, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the Criminal District Court No. 4 Dallas County, Texas Trial Court Cause Nos. F09-1 6240-K, F09-16241-K, F09-16242-K, F09-16243-K, F09-16244-K, F09-16245-K
MEMORANDUM OPINION
Before Justices Moseley, Fillmore, and Myers Opinion By Justice Myers
Reaht Lakendric Smith a/k/a Riyadh Smith waived a jury and pleaded guilty to four
aggravated robbery with a deadly weapon offenses, one unauthorized use of a motor vehicle
(UUMV) offense, and one burglary of a habitation offense. See TEx. PENAL CODE ANN. § 29.03(a)(2), 30.02(a), 31.07(a). After finding appellant guilty, the trial court assessed
punishment at fifteen years’ imprisonment on each aggravated robbery conviction, ten years’ imprisonment on the burglary conviction, and two years’ confinement in state jail on the UUMV
conviction. In three issues, appellant contends the sentences violate his constitutional rights
under the United States and Texas Constitutions, and the judgments should be modified to show
there were no plea agreements and to show the proper degree of the offrnse in one aggravated
robbery case. We modify the trial court’s judgments 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 thc facts. We issue this memorandum opinion pursuant to Texas Rule of Appellate
Procedure 4Th because the law to be applied in the case is well settled.
UNcoNsrITuTI0NAL SENTENCES
In his first and second issue, appellant contends the sentences violate his constitutional
rights under the United States and Texas Constitutions because they are grossly disproportionate
to the offenses and inappropriate to the offender. See U.S. C0NST. AMEND. VIII; Thx. C0Nst ART. I, § 13. Appellant asserts he was under the influence of marijuana and Xanax at the time he
committed the offenses, and because he was only sixteen years of age’ at the time of the
offenses, the punishment assessed is severe. The State responds that appellant has failed to
preserve his complaints for appellate review and, alternatively, the sentences are constitutional.
Appellant did not complain about the sentences either at the time they were imposed or in
motions for new trial. See Tex. R. App. P. 33.l(a)(l); Castaneda v. State, 135 S.W.3d 719, 723
(Tex. App.-Dallas 2003, no pet.) (for error to be preserved for appeal, the record must show an
appellant made a timely request, objection, or motion). Thus, he has not preserved this issue for
our review.
1 1 n each case. appellant was certified to stand trial as an adult.
2 In addition, the trial court imposed punishment in these cases within the statutory range
for the offenses. See TEx. PENAL. CODE ANN. § 12.32. 12.33. 12.35, 29.03(b), 30.02(cX2),
31.07(b). As a general nile, punishment that is assessed within the statutory range for an offense
is neither excessive nor unconstitutionally cniel or unusual. Kirk v. State, 949 S.W.2d 769, 772
(Tex. App.-DalIas 1997, pet. refd); see also Jackson v. State, 680 S.W.2d 809, 814 (Ta. Crim.
App. 1984) (as long as a sentence is within the proper range of punishment, it will not be
disturbed on appeal). We resolve appellant’s first and second issue against him.
MoDin’ JUDGMENfl.
In his third issue, appellant contends the judgment in each case should be modified to
show there was no plea agreement and that the degree of one aggravated robbery offense should
be corrected. The State agrees the judgments should be modified as requested by appellant
Appellant entered open guilty pleas to the offenses charged in the indictments. The
judgments state appellant was sentenced to fifteen, ten, and two years pursuant to plea
agreements. Thus, the judgments are incorrect We sustain appellant’s third issue. We modify
the judgments to show the plea bargain terms were “open.” 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 (Ta. App.—Dallas 1991, pet. refd).
In cause no. 05-12-00503-CR, appellant was convicted of aggravated robbery with a
deadly weapon, a first-degree felony offense. The judgment, however, states the degree of
ofThnse is “state jail felony.” Thus, the judgment is incorrect. We modify the judgment to show
the degree of the offense is “1st Degree Felony.” See id.
The records show the trial court orally pronounced a $1,000 fine in each case when it
imposed the sentences. The judgments in cause nos. 05-12-00501-CR, 05-12-00503-CR, 05-12-
3 00504-CR, 05-12-00505-CR, and 05-12-00506-CR do not include the fine. When a conflict
exists between the oral pronouncement and the written judgment, the oral pronouncement
controls .See c’o/fi’v v, State, 979 S.W.2d 326, 328 (Tex. Crim. App. 199$). We modify the
judgments to include a $1,000 fine. See TEx. R. App. p. 43.2(b); Biglev, 865 S.W.2d at 27--28;
Asherrv, 813 S.W.2d at 529—30.
CoNc1usI ON
In cause no. 05-12-00501-CR, we modify the judgment to show “terms of plea bargain”
is “open,” and to include a $1,000 fine. In cause no. 05-12-00502-CR, we modify the judgment
to show “terms of plea bargain” is “open.” In cause no. 05-12-00503-CR, we modify the
judgment to show “terms of plea bargain” is “open,” the degree of the offense is “1st Degree
Felony,” and to include a $1,000 fine. In cause no. 05-12-00504-CR, we modify the judgment to
show “terms of plea bargain” is “open,” and to include a $1,000 fine. In cause no. 05-12-00505-
CR, we modify the judgment to show “terms of plea bargain” is “open,” and to include a $1,000
fine. In cause no. 05-1 2-00506-CR, we modify the judgment to show “terms of plea bargain” is
“open,” and to include a $1,000 fine.
As modified, we affirm the trial court’s judgment in each case.
LANAM ERS JUSTICE
Do Not Publish TEx. R. App. P.47 120501F.U05
4 QIourt of ppai jfiftj itritt of txa at a1ta JUDGMENT
REAFIT LAKENDRIC SMITH A/K/A Appeal from the Criminal District Court RIYADI-{ SMITH, Appellant No. 4 of Dallas County, Texas (Tr.Ct.No. F09- 16240-K). No, 05-12-00501-CR V. Opinion delivered by Justice Myers, Justices Moseley and Fillmore THE STATE OF TEXAS, Appellee participating.
Based on the Court’s opinion of this date, the trial court’s judgment is MODIFIED as follows:
The section entitled “Terms of Plea Bargain” is modified to show “Open.”
The section entitled “Fine” is modified to show “$1,000.”
As modified, we AFFIRM the trial court’s judgment.
Judgment entered November 14, 2012.
LANA MYERS 6’ JUSTICE Court of ppea1% f(ftb aitria of exa% at aaua% JUDGMENT
REAHT LAKENDRIC SMITH A/K/A Appeal from the Criminal District Court RIYADH SMITH, Appellant No.4 of Dallas County, Texas (Tr.Ct.No.
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Affirmed as Modified; Opinion Filed November 14, 2012.
In The Qtourt of Zppeat ffiftb 3itrirt ot Z1texa at afta No. 05-12-00501-CR No. 05-12-00502-CR No. 05-12-00503-CR No. 05-12-00504-CR No. 05-12-00505-CR No. 05-12-00506-CR
REAHT LAKENDRIC SMITH A/K/A RIYADH SMITH, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the Criminal District Court No. 4 Dallas County, Texas Trial Court Cause Nos. F09-1 6240-K, F09-16241-K, F09-16242-K, F09-16243-K, F09-16244-K, F09-16245-K
MEMORANDUM OPINION
Before Justices Moseley, Fillmore, and Myers Opinion By Justice Myers
Reaht Lakendric Smith a/k/a Riyadh Smith waived a jury and pleaded guilty to four
aggravated robbery with a deadly weapon offenses, one unauthorized use of a motor vehicle
(UUMV) offense, and one burglary of a habitation offense. See TEx. PENAL CODE ANN. § 29.03(a)(2), 30.02(a), 31.07(a). After finding appellant guilty, the trial court assessed
punishment at fifteen years’ imprisonment on each aggravated robbery conviction, ten years’ imprisonment on the burglary conviction, and two years’ confinement in state jail on the UUMV
conviction. In three issues, appellant contends the sentences violate his constitutional rights
under the United States and Texas Constitutions, and the judgments should be modified to show
there were no plea agreements and to show the proper degree of the offrnse in one aggravated
robbery case. We modify the trial court’s judgments 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 thc facts. We issue this memorandum opinion pursuant to Texas Rule of Appellate
Procedure 4Th because the law to be applied in the case is well settled.
UNcoNsrITuTI0NAL SENTENCES
In his first and second issue, appellant contends the sentences violate his constitutional
rights under the United States and Texas Constitutions because they are grossly disproportionate
to the offenses and inappropriate to the offender. See U.S. C0NST. AMEND. VIII; Thx. C0Nst ART. I, § 13. Appellant asserts he was under the influence of marijuana and Xanax at the time he
committed the offenses, and because he was only sixteen years of age’ at the time of the
offenses, the punishment assessed is severe. The State responds that appellant has failed to
preserve his complaints for appellate review and, alternatively, the sentences are constitutional.
Appellant did not complain about the sentences either at the time they were imposed or in
motions for new trial. See Tex. R. App. P. 33.l(a)(l); Castaneda v. State, 135 S.W.3d 719, 723
(Tex. App.-Dallas 2003, no pet.) (for error to be preserved for appeal, the record must show an
appellant made a timely request, objection, or motion). Thus, he has not preserved this issue for
our review.
1 1 n each case. appellant was certified to stand trial as an adult.
2 In addition, the trial court imposed punishment in these cases within the statutory range
for the offenses. See TEx. PENAL. CODE ANN. § 12.32. 12.33. 12.35, 29.03(b), 30.02(cX2),
31.07(b). As a general nile, punishment that is assessed within the statutory range for an offense
is neither excessive nor unconstitutionally cniel or unusual. Kirk v. State, 949 S.W.2d 769, 772
(Tex. App.-DalIas 1997, pet. refd); see also Jackson v. State, 680 S.W.2d 809, 814 (Ta. Crim.
App. 1984) (as long as a sentence is within the proper range of punishment, it will not be
disturbed on appeal). We resolve appellant’s first and second issue against him.
MoDin’ JUDGMENfl.
In his third issue, appellant contends the judgment in each case should be modified to
show there was no plea agreement and that the degree of one aggravated robbery offense should
be corrected. The State agrees the judgments should be modified as requested by appellant
Appellant entered open guilty pleas to the offenses charged in the indictments. The
judgments state appellant was sentenced to fifteen, ten, and two years pursuant to plea
agreements. Thus, the judgments are incorrect We sustain appellant’s third issue. We modify
the judgments to show the plea bargain terms were “open.” 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 (Ta. App.—Dallas 1991, pet. refd).
In cause no. 05-12-00503-CR, appellant was convicted of aggravated robbery with a
deadly weapon, a first-degree felony offense. The judgment, however, states the degree of
ofThnse is “state jail felony.” Thus, the judgment is incorrect. We modify the judgment to show
the degree of the offense is “1st Degree Felony.” See id.
The records show the trial court orally pronounced a $1,000 fine in each case when it
imposed the sentences. The judgments in cause nos. 05-12-00501-CR, 05-12-00503-CR, 05-12-
3 00504-CR, 05-12-00505-CR, and 05-12-00506-CR do not include the fine. When a conflict
exists between the oral pronouncement and the written judgment, the oral pronouncement
controls .See c’o/fi’v v, State, 979 S.W.2d 326, 328 (Tex. Crim. App. 199$). We modify the
judgments to include a $1,000 fine. See TEx. R. App. p. 43.2(b); Biglev, 865 S.W.2d at 27--28;
Asherrv, 813 S.W.2d at 529—30.
CoNc1usI ON
In cause no. 05-12-00501-CR, we modify the judgment to show “terms of plea bargain”
is “open,” and to include a $1,000 fine. In cause no. 05-12-00502-CR, we modify the judgment
to show “terms of plea bargain” is “open.” In cause no. 05-12-00503-CR, we modify the
judgment to show “terms of plea bargain” is “open,” the degree of the offense is “1st Degree
Felony,” and to include a $1,000 fine. In cause no. 05-12-00504-CR, we modify the judgment to
show “terms of plea bargain” is “open,” and to include a $1,000 fine. In cause no. 05-12-00505-
CR, we modify the judgment to show “terms of plea bargain” is “open,” and to include a $1,000
fine. In cause no. 05-1 2-00506-CR, we modify the judgment to show “terms of plea bargain” is
“open,” and to include a $1,000 fine.
As modified, we affirm the trial court’s judgment in each case.
LANAM ERS JUSTICE
Do Not Publish TEx. R. App. P.47 120501F.U05
4 QIourt of ppai jfiftj itritt of txa at a1ta JUDGMENT
REAFIT LAKENDRIC SMITH A/K/A Appeal from the Criminal District Court RIYADI-{ SMITH, Appellant No. 4 of Dallas County, Texas (Tr.Ct.No. F09- 16240-K). No, 05-12-00501-CR V. Opinion delivered by Justice Myers, Justices Moseley and Fillmore THE STATE OF TEXAS, Appellee participating.
Based on the Court’s opinion of this date, the trial court’s judgment is MODIFIED as follows:
The section entitled “Terms of Plea Bargain” is modified to show “Open.”
The section entitled “Fine” is modified to show “$1,000.”
As modified, we AFFIRM the trial court’s judgment.
Judgment entered November 14, 2012.
LANA MYERS 6’ JUSTICE Court of ppea1% f(ftb aitria of exa% at aaua% JUDGMENT
REAHT LAKENDRIC SMITH A/K/A Appeal from the Criminal District Court RIYADH SMITH, Appellant No.4 of Dallas County, Texas (Tr.Ct.No. F09-I 6241-K). No. 05-12-00502-CR V. Opinion delivered by Justice Myers, Justices Moseley and Fillmore THE STATE OF TEXAS, Appellee participating.
Based on the Court’s opinion of this date, the trial court’s judgment is MODLI1ED as follows:
The section entitled “Terms of Plea Bargain” is modified to show “Open.”
As modified, we AFFIRM the trial court’s judgment
Judgment entered November 14,2012.
L4RS4 JUSTICE QIotirt of Ztppat jfiftlj Ottrict of rixa at a11a JUDGMENT
REM-IT LAKENDRIC SMITH A/K1A Appeal from the Criminal District Court RIYADH SMITH, Appellant No. 4 of Dallas County, Texas (Tr.Ct.No. F09- 1 6242-K). No. O5l2-OO5O3-CR V. Opinion delivered by .Justice Myers, Justices Moseley and Fillmore THE STATE OF TEXAS, Appellee part icipatm g.
Based on the Court’s opinion of this date, (he trial court’s judgment is I’1ODIFIED as follows:
The section entitled “Degree of Offense” is modified to show “1st Degree Felony.”
The section entitled “Terms of Pica I3argain” is modified to show “Open.”
The section entitled “Fine” is modified to show “$1 ,000.”
As modified wc ALFIRN’1 the tiiai coult sjudgment
LANS JUSTICE Court of ppta1% fifth ai%trict of Uexa% at aUa% JUDGMENT
REAHT LAKENDRIC SMITH A/K/A Appeal from the Criminal District Court RIYADH SMITH, Appellant No.4 of Dallas County Texas (Tr.Ct.No. F09-16243-K). No. 05-12-00504-CR V. Opinion delivered by Justice Myers, Justices Moseley and Fillmore THE STATE OF TEXAS, Appellee participating.
Based on the Court’s opinion of this date, the trial court’s judgment is MODIFIED as follows:
The section entitled “Terms of Plea Bargain” is modified to show “Open.”
LtS+ JUSTICE Court of ppeaIs fifth aiøtrftt of Ena at aaua JUDGMENT
REAHT LAKENDRIC SMiTH A/K/A Appeal from the Criminal District Court RIYADH SMITH. Appellant No.4 of Dallas County, Texas (Tr.Ct.No. F09-16244-K). No. 05-12-00505-CR V. Opinion delivered by Justice Myers, Justices Moseley and Fillmore THE STATE OF TEXAS, Appellee participating.
Based on the Court’s opinion of this date, the trial court’s judgment is MODIFIED as follows:
The section entitled “Terms of Plea Bargain” is modified to show “Open.”
LANA M RS JUSTICE Court of (ppea1% fifth i%thd of Ens at mafta% JUDGMENT
REAHT LAKENDRIC SMITH AIKJA Appeal from the Criminal District Court RIYADH SMITH. Appellant No.4 of Dallas County. Texas (Tr.CtNo. F09- 16245-K). No. 05-12-00506-CR V. Opinion delivered by Justice Myers, Justices Moseley and Fillmore THE STATE OF TEXAS, Appellee participating.
Based on the Court’s opinion of this date, the trial court’s judgment is MODIFIED as follows:
The section entitled “Terms of Plea Bargain” is modified to show “Open.”
LANAM RS JUSTICE