MARCUS DEWAYNE WRIGHT, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRMED as MODIFIED; Opinion Filed May 4, 2010.
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-09-00244-CR
No. 05-09-00245-CR
No. 05-09-00246-CR
No. 05-09-00247-CR
No. 05-09-00248-CR
............................
MARCUS DEWAYNE WRIGHT, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the 194th Judicial District Court
Dallas County, Texas
Trial Court Cause Nos. F07-23366-TM, F08-24709-QM, F08-24710-QM, F08-24711-QM, and F08-50774-LM
 
.............................................................
OPINION
Before Justices O'Neill, Lang, and Myers
Opinion By Justice Myers
        Marcus Dewayne Wright appeals five separate convictions involving possession of marijuana, possession of cocaine with intent to deliver, and possession of a firearm by a felon. In five issues, appellant argues the judgments in two of the cases should be modified to reflect the correct sentences imposed by the trial court; the judgment in another case should be abated and remanded to the trial court to determine the exact sentence assessed; the trial court improperly cumulated or “stacked” the sentences; and the trial court's sentence in one case constituted an abuse of discretion. As modified, we affirm the trial court's judgments.
Background and Procedural History
        Appellant appeals the sentences and judgments entered in the following five cases:
 
        (1) In cause number 05-09-00244-CR (F07-23366-TM), appellant was charged with possession of one gram or more but less than four grams of cocaine with intent to deliver.
 
 
 
        (2) In cause number 05-09-00245-CR (F08-24709-QM), appellant was charged with possession of one gram or more but less than four grams of cocaine with intent to deliver, and use or exhibition of a deadly weapon during the commission of the offense or during immediate flight following the commission of the offense.
 
 
 
        (3) In cause number 05-09-00246-CR (F08-24710-QM), appellant was charged with possession of more than four ounces but less than five pounds of marijuana--enhanced by two prior felony convictions.
 
 
 
        (4) In cause number 05-09-00247-CR (F08-24711-QM), appellant was charged with possession of a firearm by a felon.
 
 
 
        (5) In cause number 05-09-00248-CR (F08-50774-LM), appellant was charged with possession of a firearm by a felon.
 
        On January 21, 2009, appellant signed judicial confessions and pleaded guilty to the charges in each of the above cases. He did so without a plea bargain agreement. Appellant also pleaded true to the deadly weapon allegation in 05-09-00245-CR and true to the two enhancement paragraphs in 05-09-00246-CR. On February 13th, the trial court imposed the following sentences:
 
05-09-00244-CR: Ten years deferred adjudication and a $1,000 fine.
 
 
 
05-09-00245-CR: Seven years in prison.   See Footnote 1 
 
 
 
05-09-00246-CR: Ten years community supervision.   See Footnote 2 
 
 
 
05-09-00247-CR: Ten years community supervision.
05-09-00248-CR: Ten years community supervision.   See Footnote 3 
 
On February 16th, appellant filed timely notices of appeal.
Discussion
        Modification of Judgment in 05-09-00245-CR
        In his first issue, appellant argues the judgment in 05-09-00245-CR should be modified to reflect the correct sentence pronounced by the trial court. The State agrees.
        Appellant was charged in 05-09-00245-CR with possession with the intent to deliver one gram or more but less than four grams of cocaine. At the sentencing hearing, the trial court accepted appellant's guilty plea and assessed the following punishment:
 
[I]n the second case, wherein Cause No. [05-09-00245-CR], wherein you were later, in 2008, arrested again while out on bond in that case for unlawful possession with intent to deliver a controlled substance, which is cocaine. In that case, I'm going to assess you a sentence of seven years confinement in the State penitentiary, no fine, and I'll give you credit for all of the back time that you served in that case.
 
The trial court subsequently imposed the seven year sentence with credit for back time and no fine. The court also made a deadly weapon finding. The judgment, however, reflects a suspended sentence of ten years and the placing of appellant on community supervision for ten years. Thus, the trial court's judgment is incorrect. We therefore sustain appellant's first issue and modify the trial court's judgment in 05-09-00245-CR to reflect that appellant was sentenced to seven years in prison. 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)), modified on other grounds by Lockett v. State, 874 S.W.2d 810, 818 (Tex. App.--Dallas 1994, pet. ref'd).        
        Modification of Judgment in 05-09-00246-CR
        In his second issue, appellant argues the judgment in 05-09-00246-CR should be modified to reflect the correct sentence pronounced by the trial court. Again, the State agrees.
        Appellant was charged in 05-09-00246-CR with possession of marijuana of more than four ounces but less than five pounds--enhanced by two prior felony convictions. The trial court accepted appellant's guilty plea and assessed the following punishment:
 
. . . [I]n the marijuana case, and in the first two possession of firearm cases, I'm going [to] place you on probation for a ten-year period of time in each of those cases; however, I find you guilty in each of those cases, but place you on probation for a ten-year period of time under the conditions of probation.
 
The judgment reflects a seven year term of imprisonment. As a result, the trial court's judgment is incorrect. We therefore sustain appellant's second issue and modify the trial court's judgment in 05-09-00246-CR to reflect that appellant was sentenced to ten years in prison, probated for ten years. See Tex. R. App. P. 43.2(b); Bigley, 865 S.W.2d at 27-28; Asberry, 813 S.W.2d at 529-30.         Sentence Imposed by Trial Court in 05-09-00248-CR
        In his third issue, appellant argues cause number 05-09-00248-CR should be abated to the trial court so a determination can be made regarding the “the exact sentence assessed in that case.”
The State contends the record does not show a conflict between the judgment and the oral pronouncement of sentence sufficient to require that the judgment be reformed or that the case be abated to the trial court. We agree.         
        According to the record, after the initial assessment and imposition of sentences, the trial court agreed to reconsider the sentences when appellant asked that seven years of confinement be imposed in each case. Following further testimony
 
by appellant and arguments from counsel, the trial court concluded:
        First, in Cause No(s) F08-50773-UM, wherein that cause was unlawful possession of a firearm in a tavern. And in Cause No. [05-09-00248-CR] when the cause was--the charge was unlawful possession of a firearm by a felon and Cause No. [05-09-00246-CR], the charge being unlawful possession of a marijuana [sic].
 
        In each of these cases, I had placed the Defendant on ten years straight probation. And I want the record to be clear on this. My sentence actually in that case is that I have sentenced the Defendant to ten years in the State penitentiary, but probated it for the ten year period of time, and no fine in those cases.
 
 
 
        However, in the other cases, my sentences are going to remain the same. . . .
 
The judgment in cause 05-09-00248-CR reflects a suspended sentence of ten years and the placing of appellant on community supervision for ten years.
        Appellant directs our attention to a portion of the record where the trial court assessed seven years of confinement in “the third possession of a firearm by a felon” case and stated that it was sentencing appellant to seven years in prison in two cases. As a result, appellant suggests the trial court may have misstated or confused the cause numbers and that the judgment may be incorrect in cause number 05-09-00248-CR. Appellant further suggests that “[i]t is simply impossible under this record to be positive,” and that this case should therefore be abated to the trial court to determine precisely what sentence the trial court actually imposed.
        A defendant's sentence must be pronounced orally in his presence. Taylor v. State, 131 S.W.3d 497, 500 (Tex. Crim. App. 2004). The judgment, including the sentence assessed, is merely the written declaration and embodiment of that oral pronouncement. Id. When there is a conflict between the oral pronouncement of the sentence and the sentence in the written judgment, the oral pronouncement controls. Taylor, 131 S.W.3d at 500; Coffey v. State, 979 S.W.2d 326, 328 (Tex. Crim. App. 1998). But if the oral pronouncement is merely ambiguous, the jury's punishment verdict, the court's pronouncement, and the written judgment should be read together in an effort to resolve the ambiguity. Aguilar v. State, 202 S.W.3d 840, 843 (Tex. App.--Waco 2006, pet. ref'd).
        In this case, the trial court's pronouncement following reconsideration of the sentences is consistent with the judgment that the sentence in cause number 05-09-00248-CR was a suspended ten year sentence that was probated for ten years. There is no conflict between the judgment and the oral pronouncement of sentence sufficient to require that the judgment to be reformed or the cause be abated to the trial court for clarification. We overrule appellant's third issue.
        “Stacking” or Cumulation of Sentences
        In his fourth issue, appellant contends the trial court's sentencing orders in each case amount to an illegal “stacking” or cumulation of sentences. According to appellant, the trial court effectively entered illegal cumulation orders in all cases in which appellant's sentence was suspended and in which he was placed either on deferred adjudication probation or on “regular” community supervision by ordering that his probation not commence until he had completed his terms of imprisonment. The State argues that although the trial court ordered that compliance with the terms and conditions of community supervision be delayed until after appellant's release from prison, the periods of probation or community supervision commenced immediately upon pronouncement of sentence; therefore, there was no “stacking” or cumulation of sentences.
        The record shows that the trial court placed appellant on a ten year term of deferred adjudication probation in cause number 05-09-00244-CR, and ordered him to pay a $1,000 fine. The court stated:
 
At this time, I place you on probation for the ten-year period of time, provided you live up to and abide by those conditions of probation, which are going to include, and I wanted the probation officer to please take note of this. In that case, the terms and conditions will not go into effect until [appellant] is released from the State penitentiary. You don't have to start any of them.
 
(Emphasis added). As for the three other cases in which appellant was placed on ten year “straight probation,” the court stated that “there's no fines in any of those cases. And none of those terms and conditions go into effect until he's released from the penitentiary.” The court added, “Now, so he will be placed on probation at this time in those cases.” The court further stated that it was the court's intention to put appellant in a drug treatment program as part of his probation after his release from the penitentiary.
        Appellant objected to the sentences and asked the court to reconsider and convert all sentences to seven years in prison. When asked why he would want to do that, appellant stated, “Because I don't see the point of me being on ten years probation upon my release from the penitentiary.” Appellant's trial counsel then asked appellant the following questions:
 
Q. [DEFENSE COUNSEL]: All right. If I understand what the Judge has told us here this morning, the probation starts today, this morning. But, obviously, you will not be able to report to the probation officers and do anything they want you to do until you're released from the penitentiary; you understand that?
 
 
 
A. [APPELLANT]: Yes, sir.
 
 
 
Q. So it's not like you're going to do your seven and then start the ten year probation. The ten years starts today that you're on probation. It's just that they are not going to require you to do the conditions of probation until you get out of the penitentiary?
 
 
 
A. I understand.
 
In refusing appellant's request to change the probated sentences to confinement for seven years, the court stated:
 
. . . I'm going to try to make it as clear as I can for you. The reason I did that is so you--your criminal history is long and varied for the age that you have. I want you to see and experience the penitentiary experience, so when you make that choice you'll do that. But then I don't want you just to be released. I know how that parole aspect works and there are programs for that.
 
 
 
        I believe that the probation program for drug rehabilitation is much more effective under those circumstances.
 
        Appellant points out that the law is clear that an order of deferred adjudication probation cannot be “stacked” onto another prison sentence. Appellant cites Beedy v. State, 250 S.W.3d 107 (Tex. Crim. App. 2008), where the trial court had stacked a ten year deferred adjudication community supervision term onto a twelve-year prison sentence. Id. at 109. The court of appeals, noting that the trial judge did not have the authority to stack the deferred adjudication community supervision term onto his prison sentence, deleted the cumulation order. Id. The State sought further review, arguing the case should have been remanded for a new punishment hearing. The court of criminal appeals concluded that an unlawful cumulation order did not constitute reversible error under Tex. Code Crim. Proc. art. 44.29 and that the proper remedy for the unlawful cumulation order was to reform the judgment to delete the cumulation order, as the court of appeals had done. Id. at 113.
        The present case is distinguishable from Beedy for several reasons. First, as appellant knows, there was no cumulation order in this case. Second, the Beedy court concluded the court of appeals did not err in deleting the trial court's cumulation order that ordered the defendant's deferred adjudication community supervision term to begin after his prison sentence ended. Id. at 108. In cause number 05-09-00244-CR, however, the trial court stated that appellant was placed on probation “at this time,” and the order providing the conditions of community supervision states that appellant was “placed on Community Supervision on this date 2/13/99 for a period of 10 years.”
        Article 42.08(a) of the code of criminal procedure provides, in relevant part, as follows:
 
When the same defendant has been convicted in two or more cases, judgment and sentence shall be pronounced in each case in the same manner as if there had been but one conviction. Except as provided by Sections (b) and (c) of this article, in the discretion of the court, the judgment in the second and subsequent convictions may either be that the sentence imposed or suspended shall begin when the judgment and the sentence imposed or suspended in the preceding conviction has ceased to operate, or that the sentence imposed or suspended shall run concurrently with the other case or cases. . . .
 
Tex. Code Crim. Proc. Ann. art. 42.08(a) (Vernon Supp. 2009) (emphasis added). If the trial court intends to cumulate a sentence, it must do so when it orally pronounces sentence. Ex parte Vasquez, 712 S.W.2d 754, 754-55 (Tex. Crim. App. 1986). The term “stacked” is synonymous with the terms
“cumulative” and “consecutive” when used in the context of criminal sentencing, and they refer to a sentence that begins after another sentence has “ceased to operate.” Williams v. State, 675 S.W.2d 754, 762-63 (Tex. Crim. App. 1984).         In this case, although the trial court stated that appellant would not be required to “start any” of the conditions of probation until he was released from prison, there is no indication in the record that the probationary periods themselves were supposed to begin after appellant was released from prison. Instead, by placing appellant on probation “[a]t this time,” the trial court ordered the ten year probationary periods to begin on February 13, 2009, which was the same day that the sentences were imposed. The probationary period therefore began on the same date as the seven year term of imprisonment, thereby causing all of the sentences to run concurrently. Accordingly, there was no illegal “stacking” of sentences in this case. We overrule appellant's fourth issue.
        Seven Year Sentence Imposed in 05-09-00245-CR
        In his fifth issue, appellant argues that the trial court abused its discretion by imposing a seven year prison sentence because the sentence violated the objectives of the system of prohibitions, penalties, and correctional measures in the penal code in that imprisonment did not meet the objective of rehabilitation. Appellant also argues that in light of his desire for drug treatment and the trial court's recognition that drug treatment was appropriate, any sentence of imprisonment was unnecessarily harsh and designed to thwart prompt rehabilitation.
        This issue was not preserved for appellate review. In order for error to be preserved for appeal, the record must show that appellant made a timely request, objection, or motion. See Tex. R. App. P. 33.1(a)(1). Because appellant did not raise the issue presented here either at trial on in a motion for new trial, he failed to preserve the issue for appellate review. See Rhoades v. State, 934 S.W.2d 113, 120 (Tex. Crim. App. 1996); Castaneda v. State, 135 S.W.3d 719, 723 (Tex. App.--Dallas 2003, no pet.).
        In reaching this conclusion, we reject appellant's contention that a specific objection to the sentence was unnecessary in this instance because appellant's request for drug treatment put the trial court on notice that a prison term of any length was objectionable, and the only issue before the court was the appropriate sentence to assess in each case. Appellant notes that a specific objection is not required at trial when the basis of the objection or the ground for appeal is apparent from the context. See Tex. R. Evid. 103(a); Tex. R. App. P. 33.1(a)(1)(A). However, appellant misinterprets these rules. Texas Rule of Evidence 103(a)(1) and Texas Rule of Appellate Procedure 33.1(a)(1)(A) do not relieve a defendant from the requirement that he object to an alleged error; rather, they provide an exception from the requirement that the objection be specific when the specific ground of the objection is apparent from the context. See Tex. R. Evid. 103(a) (requiring an objection “stating the specific ground of objection, if the specific ground was not apparent from the context”); Tex. R. App. P. 33.1(a)(1)(A) (requiring a specific objection “unless the specific grounds were apparent from the context”); Jacoby v. State, 227 S.W.3d 128, 131 (Tex. App.--Houston [1st Dist.] 2006, pet. ref'd).         Appellant cites several cases where an objection was not required to preserve error for appellate review. See Montgomery v. State, 99 S.W.3d 257, 259-60 (Tex. App.--Fort Worth 2003, no pet.); Edwards v. State, 21 S.W.3d 625, 626-27 (Tex. App.--Waco 2000, no pet.); Garza v. State, 841 S.W.2d 19, 23 (Tex. App.--Dallas 1992, no pet.). He cites no authority, however, for the proposition that an objection is not required to preserve appellate review of an alleged disproportionate sentence that violated the objectives of the penal code, and we decline to reach such a conclusion in this case.
        Appellant also argues that his issue could be raised for the first time on appeal because it was a matter of fundamental error. However, the cases he cites are distinguishable. See Hernandez v. State, 268 S.W.3d 176 (Tex. App.--Corpus Christi 2008, no pet.); Jaenicke v. State, 109 S.W.3d 793 (Tex. App.--Houston [1st Dist.] 2003, pet. ref'd). In Hernandez, the court held that a defendant has an absolute right to an impartial judge during sentencing, and that “a defendant may complain for the first time on appeal about a trial court's refusal (i.e., lack of impartiality) to consider the full range of punishment--so long as the trial judge's conduct is so egregious as to deem the judge biased on the matter of punishment.” Hernandez, 268 S.W.3d at 178. In Jaenicke, the court noted that a court's arbitrary refusal to consider the full range of punishment constituted a denial of due process, and a court denies a defendant due process when it refuses to consider the full range of punishment or when it imposes a predetermined punishment. Jaenicke, 109 S.W.3d at 796-97. The Jaenicke court also recognized, however, that “[i]n the absence of a clear showing to the contrary, a reviewing court will presume that the trial court was neutral and detached.” Id. at 796. Appellant does not suggest that the trial court arbitrarily refused to consider the full range of punishment or that its conduct in this case was so egregious as to indicate a bias in the matter of punishment. See, e.g., Hernandez, 268 S.W.3d at 178 (bias exists where trial court summarily doubled the prior sentence). We therefore conclude that appellant failed to preserve his fifth issue for appellate review.
        Moreover, even if we were to conclude that appellant's issue was preserved for review, his argument fails on the merits. Appellant cites sections 1.02(1)(C) and 1.02(3) of the penal code to argue that a sentence of imprisonment was not necessary in this instance to prevent the recurrence of the alleged offense, and it did not satisfy the objective of rehabilitating appellant or permit recognition of differences in rehabilitation possibilities. But appellant's contention that his prison sentence is unnecessarily harsh is refuted by the fact that the seven year prison sentence in cause number 05-09-00245-CR was well within the two to twenty year statutory range of punishment for the second degree felony offense of possession with intent to deliver more than one gram but less than four grams of cocaine. See Tex. Health and Safety Code Ann. § 481.112(c) (Vernon Supp. 2009). In addition, appellant's argument that the trial court failed to consider the penal code's rehabilitation objectives is undermined by the trial court's statement that appellant would be placed in a drug treatment program as condition of community supervision following release from prison. We also note that the penal code recognizes the objective of deterrence, see Tex. Penal Code Ann. § 1.02 (Vernon 2003), and given appellant's lengthy criminal record it was reasonable for the court to impose a prison sentence. Accordingly, the trial court did not abuse its discretion. We overrule appellant's fifth issue.
        Deadly Weapon Finding in 05-09-00245-CR
        In cause number 05-09-00245-CR, appellant was alleged to have used a deadly weapon during the commission of the offense or during immediate flight following the commission of the offense. The trial court accepted appellant's plea to the deadly weapon allegation and found him guilty. However, the trial court's judgment states “N/A” under “Findings on Deadly Weapon.” Thus, the trial court's judgment is incorrect. Because the necessary information is available in the record, on our own motion we modify the trial court's judgment to show an affirmative deadly weapon finding. See Tex. R. App. P. 43.2(b); Bigley, 865 S.W.2d at 27-28; Asberry, 813 S.W.2d at 529-30 (providing that an appellate court has the authority to modify incorrect judgments, sua sponte, when the necessary information is available to do so).
        As modified, we affirm the trial court's judgments.
 
                                                          
                                                          LANA MYERS
                                                          JUSTICE
 
Do Not Publish
Tex. R. App. P. 47
090244F.U05
 
 
Footnote 1 The judgment entered in this case is the basis for appellant's first issue.
Footnote 2 The judgment entered in this case is the basis for appellant's second issue.
Footnote 3 The judgment entered in this case is the basis for appellant's third issue.