CHARLES RAY PARKER, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRM as MODIFIED and Opinion Filed April 28, 2010
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-09-00751-CR
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CHARLES RAY PARKER, Appellant
V.
THE STATE OF TEXAS, Appellee
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On Appeal from the Criminal District Court No. 2
Dallas County, Texas
Trial Court Cause No. F08-53032-TI
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OPINION
Before Justices O'Neill, Francis, and Murphy
Opinion By Justice Murphy
        Charles Ray Parker appeals following his adjudication for possession with intent to deliver cocaine. In a single issue, appellant contends the trial court abused its discretion by sentencing him to ten years' imprisonment. We affirm the trial court's judgment as modified.
        Appellant waived a jury and pleaded guilty to possession with intent to deliver cocaine in an amount of four grams or more, but less than 200 grams. See Tex. Health & Safety Code Ann. § 481.112(a), (d) (Vernon Supp. 2009). Pursuant to a plea agreement, the trial court deferred adjudicating guilt, placed appellant on ten years' community supervision, and assessed a $1500 fine. The State later moved to adjudicate, alleging appellant violated the terms of his community supervision. Appellant pleaded true to all of the allegations in a hearing on the motion. The trial court found the allegations true, adjudicated appellant guilty, and assessed punishment at ten years' imprisonment and a $500 fine.
        In his sole issue on appeal, appellant contends the trial court abused its discretion and violated the objectives of the Texas Penal Code by sentencing him to prison because the sentence is not necessary to prevent the recurrence of his criminal behavior. Appellant asserts that because he was working, completed an inpatient course of therapy, and provided care for his elderly mother, uncle, and an aunt, the trial court should have continued his probation and given him drug treatment for his “situational” drug use. The State responds that appellant has failed to preserve his complaint for appellate review and, alternatively, the sentence is within the proper statutory punishment range.
        Appellant did not complain about the sentence either at the time it was imposed or in his 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.) (for error to be preserved for appeal, the record must show appellant made a timely request, objection, or motion). After sentencing, appellant did not object to the sentence, and his motion for new trial complained that the verdict was contrary to the law and the evidence. Thus, appellant has not preserved this issue for our review.
        Even if appellant had preserved error, however, his argument still fails. As a general rule, punishment that is assessed within the statutory range for the offense is not excessive or unconstitutionally cruel or unusual. Kirk v. State, 949 S.W.2d 769, 772 (Tex. App.-Dallas 1997, pet. ref'd). In this case, the trial court imposed punishment within the statutory range for the offense. See Tex. Penal Code Ann. § 12.32 (Vernon 2003); Tex. Health & Safety Code Ann. § 481.112(d).
        We conclude the trial court did not abuse its discretion in assessing the ten-year sentence. See Jackson v. State, 680 S.W.2d 809, 814 (Tex. 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 sole issue against him.
        We note the record shows the trial court orally pronounced a $500 fine when it adjudicated appellant guilty and imposed the ten-year sentence. The trial court's judgment, however, recites the fine as “N/A.” When a conflict exists between the oral pronouncement and the written judgment, the oral pronouncement controls. See Coffey v. State, 979 S.W.2d 326, 328 (Tex. Crim. App. 1998). We modify the trial court's judgment to include the $500 fine. 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.
 
 
 
                                                          
                                                          MARY MURPHY
                                                          JUSTICE
Do Not Publish
Tex. R. App. P. 47
090751F.U05