KEDRIAN NASHUN MACK, Appellant v. THE STATE OF TEXAS, Appellee

REVERSE and REMAND in part, AFFIRM in part; Opinion issued June 17, 2008
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-07-01270-CR
No. 05-07-01271-CR
No. 05-07-01272-CR
No. 05-07-01273-CR
No. 05-07-01274-CR
No. 05-07-01275-CR
No. 05-07-01276-CR
............................
KEDRIAN NASHUN MACK, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the Criminal District Court
Dallas County, Texas
Trial Court Cause Nos. F07-71985-H, F07-48790-H, F07-48788-H,
F07-51234-H,          F07-51235-H, F07-51236-H, F07-51238-H
.............................................................
OPINION
Before Justices Morris, Whittington, and O'Neill
Opinion By Justice Morris
        At trial, Kedrian Nashun Mack waived his right to a jury trial and pleaded guilty to seven different drug-related offenses.   See Footnote 1  Now on appeal, appellant complains his sentences in the cases violate his rights under the constitutions of the United States and the State of Texas. He further complains that one of the orally pronounced sentences is outside the punishment range for the offense. Finally, he complains that the judgments in two of the cases should be modified. We modify the judgments in cause numbers 05-07-01270-CR and 05-07-01275-CR to reflect the correct degree of offense and statute violated for those cases. As modified, we affirm the trial court's judgments in those cases. In cause numbers 05-07-01271-CR and 05-07-01276-CR, we reverse the trial court's judgment on punishment only and remand the cases for a new hearing on punishment. In the remaining cases, we affirm the trial court's judgments.
        In his two first issues, appellant complains that each of his sentences violates his constitutional rights under the United States and Texas constitutions because each sentence is grossly disproportionate to the crime and inappropriate to the offender. Appellant did not complain about his sentences either at the time they were 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.). Even constitutional rights, including the right to be free from cruel and unusual punishment, may be waived. Rhoades v. State, 934 S.W.2d 113, 120 (Tex. Crim. App. 1996); Castaneda, 135 S.W.3d at 723. Because appellant has not preserved these complaints for our review, we resolve his first two issues against him.
        In his third issue, appellant complains that the sentence for one of his marijuana offenses is outside the legal punishment range. In orally assessing punishment in appellant's cases, the trial court stated:
 
        Find you guilty in all these cases, each case set your punishment at 10 years in prison, the - two years in state jail on the marijuana case, $1,500 fine. In the other cases, 12 years confinement in prison each of those cases, $1,500 fine each case.
        Order judgment, decree of the Court will be you be taken [sic] by the sheriff of this county, safely kept by her, transferred to an authorized receiving agent, Institutional Division, Texas Department of Criminal Justice six of these cases wherein you will be confined for 12 years, pay a $1,500 fine; other case, State Jail Division, Texas Department of Criminal Justice where you will be confined for two years, pay a $1,500 fine.
 
        The written judgments for each of the marijuana offenses list appellant's punishment as two years' confinement in state jail and a $1,500 fine. The Texas Court of Criminal Appeals has held that when the oral pronouncement of sentence differs from the written judgment, the oral pronouncement controls. See Ex parte Huskins, 176 S.W.3d 818, 820 (Tex. Crim. App. 2005). Thus, in one of the marijuana cases, the trial court's oral pronouncement of a twelve-year sentence controls over the written sentence of two years' confinement in state jail.
        The State concedes that the twelve-year sentence announced by the trial court for one of the two marijuana cases is outside the legal punishment range. We agree. See Tex. Health & Safety Code Ann. § 481.121(b)(3) (Vernon 2003); Tex. Penal Code Ann. § 12.35 (Vernon Supp. 2007). We cannot determine from the records before us which of the marijuana convictions received the oral pronouncement of a twelve-year sentence. Accordingly, because one of appellant's sentences in the marijuana cases, cause numbers 05-07-01271-CR and 05-07-01276-CR, is outside the legal punishment range for the offense, we must reverse the trial court's judgment in those two cases on punishment only. We resolve appellant's third issue in his favor. We reverse the trial court's judgments in cause numbers 05-07-01271-CR and 05-07-01276-CR on punishment only and remand the cases for a new hearing on punishment. See Tex. R. App. P. 78.1(d); Tex. Code Crim. Proc. Ann. art. 44.29(b) (Vernon Supp. 2007).
        In his fourth and fifth issues, appellant complains of clerical errors in two of the written judgments. In issue four, appellant contends that the judgment in cause number 05-07-01270-CR should be modified to show that he violated “Statute of Offense: 481.114 Health and Safety Code.” He additionally argues that the judgment in the case should be modified to reflect that the offense for which he was convicted was a first degree felony, rather than a second degree felony as the current written judgment reflects. In his fifth issue, appellant contends the judgment in cause number 05-07-01275-CR should be reformed to reflect that the offense for which he was convicted was a second degree felony, rather than a first degree felony as the current written judgment reflects.
        The State agrees to the modifications requested by appellant in his fourth and fifth issues. After examining the entire record and the applicable law, we conclude we have the necessary data and information to modify the judgments. See Abron v. State, 997 S.W.2d 281, 282 (Tex. App.-Dallas 1998, pet. ref'd); see also Tex. R. App. P. 43.2(b). We therefore resolve appellant's fourth and fifth issues in his favor.
        We modify the judgment in cause number 05-07-01270-CR to reflect that appellant violated section 481.114 of the Texas Health and Safety Code and to reflect that the offense was a first degree felony. We modify the judgment in cause number 05-07-01275-CR to reflect that the offense for which he was convicted was a second degree felony. As modified, we affirm those judgments.         In cause numbers 05-07-01271-CR and 05-07-01276-CR, we reverse the trial court's judgments on punishment only. We remand the two cases for a new hearing on punishment.
        We affirm all the remaining judgments, cause numbers 05-07-01272-CR, 05-07-01273-CR, and 05-07-01274-CR.
 
 
                                                          
                                                          JOSEPH B. MORRIS
                                                          JUSTICE
 
Do Not Publish
Tex. R. App. P. 47
071270F.U05
 
Footnote 1 The offenses consist of possession of marijuana and possession, with intent to deliver, of codeine, cocaine, methamphetamine and alprazolam.