BRYAN CORBIT BUTLER, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRM as modified; Opinion Filed October 30, 2008
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-07-01206-CR
............................
BRYAN CORBIT BUTLER, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the 283rd Judicial District Court
Dallas County, Texas
Trial Court Cause No. F07-23491-ST
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OPINION
Before Chief Justice Thomas and Justices O'Neill and Lagarde   See Footnote 1 
Opinion By Justice Lagarde
        Appellant Bryan Corbit Butler pleaded guilty, without the benefit of a plea bargain, to the offense of possession of methamphetamine in the amount of four grams or more, but less than 200 grams. See Tex. Health & Safety Code Ann. § 481.102(6) (Vernon 2003), § 481.115(a) (Vernon Supp. 2008). Butler elected the jury to assess his punishment. After hearing evidence presented on punishment, the jury assessed appellant's punishment at nine years' imprisonment in the Texas Department of Criminal Justice, Institutional Division. Appellant now appeals the trial court's judgment, raising three “points of error.” In his first point, appellant contends he is entitled to a new trial because the trial court did not comply with article 26.08 of the Texas Code of Criminal Procedure by failing to insert appellant's corrected name on the indictment and style of the case. In points two and three, appellant claims his sentence violated his constitutional rights because it is grossly disproportionate to the crime under both the federal and state constitutions. For reasons that follow, we affirm as modified the judgment.
        At appellant's arraignment before the trial court on August 28, 2007, the record shows the following:
 
THE COURT: On the record, Karren. F07-23491-ST, Brandon Ray Butler. Mr. Butler, that is your name?
 
 
 
        THE DEFENDANT: Yes, sir.
MS. THORNTON [defense counsel]: We have a name change, Judge. It's Bryan Corbit Butler.
 
 
 
THE COURT: I'm sorry. Bryan Corbit Butler. I just picked that up. I'll make that appropriate change.
 
        The following day, August 29, 2007, a jury was selected. Outside the jury's presence, the trial judge questioned appellant about two stipulations of evidence he had signed. In one document, appellant stipulated that the drug seized from him was methamphetamine and in the other document appellant stipulated he had a criminal history of six arrests and convictions. After the trial judge confirmed appellant wanted to make such admissions, the court admitted the stipulations into evidence. Another evidentiary matter was also addressed by the trial court and the attorneys before the jury was brought into the courtroom and sworn. After the jury was sworn, the indictment was again read and appellant pleaded guilty to the indictment before the jury.   See Footnote 2  The trial judge confirmed appellant was pleading guilty because he was guilty and for no other reason. After opening statements were presented to the jury by each side, the State called Garland police officer Peter Koerner as its first witness.
        Koerner testified he had been a Garland police officer for three years. Koerner told the jury about stopping at a 7-Eleven in a high crime area in Dallas County on February 26, 2007. Koerner said his suspicion was aroused about a Dodge Neon motor vehicle that was parked diagonally, instead of parallel, to the gas pumps. Two males were in the vehicle. Upon leaving the 7-Eleven, Koerner spoke to the clerk about the vehicle. The clerk said the vehicle had been parked there for about ten minutes and he had not seen anyone get out of it. As Koerner was returning to his car, a female came out of the store and got into the Neon. The vehicle was driven away. Koerner followed in his vehicle. The suspect vehicle pulled into the first nearby open business, a Wal-Mart. Based on his experience, Koerner believed this was done to elude him. Koerner drove into the Wal-Mart parking lot and watched as the people got out and went into the store. They meandered about the arcade area of the store and kept looking over their shoulders toward the window. Koerner then moved his vehicle to a location where he would not be seen; however, he used a device to watch the Neon. Within a few minutes, the trio came out of the Wal-Mart, got in the Neon, and drove to the service road of I-30. Koerner followed and, after seeing the vehicle commit two traffic offenses, he made a traffic stop of the Neon, using his overhead lights. When the vehicle stopped, Koerner used a spotlight to see the occupants of the car. The female was behind the steering wheel. The two males were bending over in the seat and moving their hands around although Koerner could not see what they were doing.
        Koerner approached the driver's side of the Neon and asked the driver for identification, which she could not produce. The female driver told Koerner the vehicle was not hers and she did not know whose it was. Koerner called for backup. When backup officers arrived, the two males were ordered out of the Neon and told to put their hands on the vehicle. Appellant got out of the car, but instead of complying with the police demands, he ran. Koerner grabbed appellant; however, appellant dragged Koerner for several yards before the backup officers joined in to assist. A scuffle ensued among appellant and the three officers. Appellant was eventually sprayed with pepper spray, at which point he quit fighting and said he was sorry. Appellant was arrested, handcuffed, and searched. A baggie of methamphetamine was found in appellant's front right pocket. A loaded gun was found on the seat where appellant had been sitting. Koerner described appellant's behavior as very aggressive and testified he believed appellant was trying, not only to escape, but to harm or kill the officers.
        Garland police officer J. T. Burnett testified he was working on February 26, 2007, and responded to a call for backup at the location of appellant's arrest. Burnett's testimony was substantially the same as Koerner's about the struggle with appellant. Burnett also testified a third officer, Taylor, joined in the fight. Burnett's opinion was that appellant was under the influence of “something” on the night of his arrest. Burnett was present when the methamphetamine was found. Burnett characterized appellant's behavior as being consistent with a methamphetamine user.
        In addition to the testimony of the arresting officers, the State presented the testimony of Dallas police officer Barry W. Ragsdale, as an expert witness, to explain to the jury the effects of methamphetamine on the body, its highly addictive nature, its costs, and how guns are often found in connection with drug users.
        Before resting its case, the State offered, and the trial court admitted without objection, appellant's stipulation of evidence dealing with his prior criminal history. Appellant stipulated he was convicted of evading arrest or detention on May 1, 2000, in Dallas County, and was sentenced to one year probation; that he was convicted of failure to identify as a fugitive on July 22, 2003, in Dallas County, and was sentenced to ninety days in the county jail; he was convicted of evading arrest or detention on July 22, 2003, in Dallas County, and was sentenced to ninety days in the county jail; he was convicted of escape from custody on July 16, 2003, in Freestone County, and was sentenced to eighteen months' probation which was revoked on October 13, 2004; he was convicted of evading arrest using a motor vehicle on June 6, 2005, in Dallas County, and was sentenced to eight months in the state jail; and he was convicted of theft of property of at least $1500 but less than $20,000 on June 6, 2005, in Dallas County, and was sentenced to eight months in the state jail. Following the stipulation of evidence, the State rested.
        The defense called appellant's paternal uncle, Gregory Scott Butler. Butler testified both of appellant's parents and appellant's sister had drug problems. Appellant's father eventually kicked his drug habit but appellant's mother still had a drug problem. Butler told of how Butler had tried to help appellant by allowing him to live with Butler periodically during his life. Appellant had a serious drug problem for the last six years. In 2001 or 2002, appellant began to live with Butler again. Although appellant had a drug problem he was trying to “clean himself up.” In March of 2003, appellant's father was killed in a car accident and, thereafter, appellant's drug problems escalated. Shortly after his father's death, appellant's grandfather died of cancer. Appellant began to commit crimes. Eventually, Butler came to believe he could not help appellant but he believed appellant needed help getting off drugs. Butler testified appellant was a different person when he was on drugs. When appellant was not on drugs, according to Butler, he “would give you the shirt off his back.” Butler asked the jury to be merciful with appellant.
        After the trial court held a hearing outside the jury's presence to inquire whether appellant understood his rights concerning testifying and to confirm appellant did not wish to testify, the jury returned into the courtroom. Before the jury, the defense rested its case; the State closed; the defense closed; and jury arguments were presented. The jury found appellant guilty, as it was instructed to do, and assessed appellant's punishment at nine years in prison.
Appeal
        On appeal, appellant first contends he is entitled to a reversal because the trial judge did not correct his name on the indictment and other court papers as required by article 26.08 of the Texas Code of Criminal Procedure. See Tex. Code Crim. Proc. Ann. art. 26.08 (Vernon 1989). The State responds that such error is harmless because appellant is not contesting identity, and requests this court to reform the judgment to reflect the requested name change.
        Article 26.08 states:
 
        If the defendant, or his counsel for him, suggests that he bears some name different from that stated in the indictment, the same shall be noted upon the minutes of the court, the indictment corrected by inserting therein the name of the defendant as suggested by himself or his counsel for him, the style of the case changed so as to give his true name, and the cause proceed as if the true name had been first recited in the indictment.
 
Id.
 
        Article 21.19 states:
 
 
        An indictment shall not be held insufficient, nor shall the trial, judgment or other proceedings thereon be affected, by reason of any defect of form which does not prejudice the substantial rights of the defendant.
 
Id. § 21.19 (emphasis supplied).
 
        In Jones v. State, the court of criminal appeals addressed former article 476 (now article 21.19) and the case of Cresencio v. State.   See Footnote 3  In discussing the motion to quash filed in Cresencio, the court stated:
 
        The court first stated that this motion should have been treated by the trial court as a suggestion of his true name. Proceeding, the opinion examined the Code of Criminal Procedure articles earlier mentioned, and stated at p. 938 of 165 S.W.:
 
 
 
        'Taking all of these articles together we think it is clear and certain: First, that the purpose and object in giving the name of an accused in the indictment is for identification; the name alone is sufficient for that, without any description whatever; second, that a wrong name or not the full name is a matter of form only, which an accused can readily and at his own suggestion completely have corrected at the time . . . and . . . as said by article 476, an indictment shall not be held insufficient, nor shall the trial, judgment, or other proceedings thereon be affected, by reason of any defect or imperfection of form in such indictment which does not prejudice the substantial rights of the defendant.' (footnote omitted.)
 
Jones v. State, 504 S.W.2d 442, 443 (Tex. Crim. App. 1974) (emphasis supplied).
 
        Based on the above authorities, a trial court's failure to comply with article 26.08 is reversible error only upon a showing that the appellant's substantial rights have been affected. In this case there is no issue of appellant's identity but, rather, it is clear appellant is the person charged in the indictment who pleaded guilty to the allegations contained therein. The fact that the trial judge inadvertently failed to physically change the name on the indictment and the other court papers does not prejudice appellant. Nor has appellant claimed that he was prejudiced by such failure.
        The record before us contains sufficient information to allow this Court, as the State requested, to modify the judgment to correctly reflect appellant's true name. Therefore, we have the authority to modify the incorrect judgment. Tex. R. App. P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27 (Tex. Crim. App. 1993). We grant the State's request to modify the judgment and order that the judgment be modified to reflect appellant's true name, Bryan Corbit Butler.
        In appellant's points of error two and three, he complains his nine-year sentence was grossly disproportionate to the crime under both the federal and state constitutions, thus it violated his constitutional rights to be free from cruel and unusual punishment. See U.S. Const. amends. VIII and XIV; Tex. Const. art. I, § 19. The State responds that error is not preserved and, alternatively, that appellant's sentence is not grossly disproportionate. Appellant recognizes the preservation of error rule, but urges this Court to follow other courts that have addressed the merits of disproportionate sentence complaints, after noting the lack of preservation of error. Appellant relies on Schneider v. State, 645 S.W.2d 463, 466 (Tex. Crim. App. 1983) and Ray v. State, 119 S.W.3d 454, 459 (Tex. App.-Fort Worth 2003, pet. ref'd).
        As both parties recognize, rule 33.1(a)(1) of the Texas Rules of Appellate Procedure requires, as a prerequisite to presentation of error for appellate review, that the same complaint have been made to the trial court by a timely and specific objection, request, or motion. See Tex. R. App. P. 33.1(a)(1). And one of the cases appellant relies on, Schneider, specifically states that even constitutional rights may be forfeited by the failure to object. See Schneider, 645 S.W.2d at 466.
        The record before us does not show that appellant objected in the trial court at any time that his nine-year sentence was cruel and unusual. Consequently, error was not preserved; thus, nothing is presented for our review. We decline to engage in dicta on this issue.   See Footnote 4 
        For reasons set out above, we resolve all of appellant's issues against him. As modified, we affirm the judgment.
 
 
                                                          
                                                          SUE LAGARDE
                                                          JUSTICE, ASSIGNED
 
Do Not Publish
Tex. R. App. P. 47
071206F.U05
 
Footnote 1 The Honorable Sue Lagarde, Justice, Court of Appeals, Fifth District of Texas at Dallas, Retired, sitting by assignment.
Footnote 2 During this reading of the indictment, appellant's name was read as “Bryan C. Butler.”
Footnote 3 73 Tex. Cr. R. 436, 165 S.W. 936 (1914).
Footnote 4 We note, as the State points out in a footnote, that Schneider was disposed of procedurally, not on the merits; thus, the court's discussion of the merits of the disproportionate sentence was dicta. See Schneider, 645 S.W.2d at 466.