DENENE KATHLEEN REYNA, Appellant v. THE STATE OF TEXAS, Appellee

Affirmed and Opinion Issued December 21, 1992
 
 
S
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-92-01337-CR
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DENENE KATHLEEN REYNA, Appellant
V.
THE STATE OF TEXAS, Appellee
..............................................................
On Appeal from the Criminal District Court No. 2
Dallas County, Texas
Trial Court Cause No. F92-33557-UI
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Before Justices Thomas, Maloney, and Kaplan FN:1
Opinion by Justice Maloney
        The trial court convicted Denene Kathleen Reyna of burglary of a habitation. The trial court assessed a thirty year sentence and a fine of $2000.
        Appellant entered a plea of guilty to the indictment. The State and appellant did not agree upon any punishment.
        The indictment listed appellant's name as Denise Kathleen Reyna. When the trial court called the case for trial, it administered the oath to appellant and immediately asked her if Denise Kathleen Reyna was her "true and correct name." Appellant answered, "Yes, Sir, except Denene." The court continued the hearing, found appellant guilty, and assessed punishment. It made a docket entry and signed an order changing appellant's name to Denene Kathlene Reyna.
        Appellant filed a pleading entitled "Defendant's Notice of Appeal, Proof of Indigency, Designation of Record & Request for Appointment of Counsel." This preprinted form expresses appellant's desire to appeal from the trial court's judgment on the grounds that: 1) the trial court denied her permission to appeal; and 2) the evidence was insufficent to support her conviction.
        Appellant's attorney filed a brief in which he concludes that the appeal is wholly frivolous and without merit. The brief meets the requirements of Anders v. California, 386 U.S. 738 (1967). It presents a professional evaluation of the record demonstrating why, in effect, there are no meritorious grounds to be advanced. See High v. State, 573 S.W.2d 807 (Tex. Crim. App. 1978); Currie v. State, 516 S.W.2d 684 (Tex. Crim. App. 1974); Gainous v. State, 436 S.W.2d 137 (Tex. Crim. App. 1969). Appellant's attorney delivered a copy of the brief to appellant. We advised appellant that she had the opportunity to examine the appellate record and a right to file a pro se brief. Appellant has not filed a pro se brief.
        Appellant's counsel does not raise any of appellant's grounds for appeal as points of error. However, he raises two arguable points of error: the fine assessed against appellant, an indigent, is cruel and unusual punishment, and the trial court's failure to interlineate the indictment is reversible error.
        In her first arguable point ot error, she contends that the punishment by confinement and a fine, when appellant is indigent, constitutes cruel and unusual punishment. Appellant relies on the Eight Amendment made applicable to the states through the Fourteenth Amendment. U.S. Const. amends. VIII, XIV. She maintains that the court has unconstitutionally imprisoned her because of her apparent inability to pay the fine. She argues that the court's judgment converts a fine into imprisonment.
        Burglary of a habitation is a first degree felony. Tex. Penal Code Ann. § 30.02(d)(1) (Vernon 1989). A first degree felony is punishable by imprisonment from five years to ninety-nine years or life and a fine of up to $10,000. Id. § 12.32 (Vernon Supp. 1992).
        Punishment assessed within the statutory range is not unconstitutionally cruel and unusual. McNew v. State, 608 S.W.2d 166, 174 (Tex. Crim. App. [Panel Op.] 1978); Carpenter v. State, 783 S.W.2d 232, 232-33 (Tex. App.--Dallas 1989, no pet.). The Equal Protection Clause of the Fourteenth Amendment prohibits imprisonment solely because of inability to pay a fine. See Tate v. Short, 401 U.S. 395, 396-400 (1971); Williams v. Illinois, 399 U.S. 235, 240-42 (1970). Courts may not imprison a defendant because he is too poor to pay a fine. Ex parte Minjares, 582 S.W.2d 105, 109 (Tex. Crim. App. [Panel Op.] 1979) (op. on reh'g).
        Appellant relies on United States v. Grose, 687 F.2d 1298, 1301 (10th Cir. 1982), as authority to show that she went to prison because she could not pay a fine. In Grose, the substantive criminal statute's only sanction was a fine.
        In this case, the trial court assessed a prison term and a fine. Texas statutes allow for imprisonment and a fine. The imprisonment and fine assessed was within the statutory range of punishment.
        The judgment does not indicate that the court imprisoned appellant because of her inability to pay the fine assessed. Appellant is imprisoned only because the trial court sentenced her to a term of years. It did not imprison her because she could not pay the fine.
        Because the punishment assessed is within the statuatory range allowed by law, it is not cruel and unusual punishment. We find no constitutional violation. We overrule the first arguable point of error.
        In the second arguable point, appellant argues that the trial court reversibly erred by not correcting the indictment's face to reflect appellant's true and correct name. Appellant maintains that Ward v. State, 829 S.W.2d 787, 793-94 (Tex. Crim. App. 1992) requires an actual alteration of the face of the indictment itself.
        Under article 28.11, the State must first move the trial court for leave to amend, the trial judge then determines whether the amendment is proper under article 28.10, and, if proper, the court may grant the State permission to amend. "The amendment, then, is the actual alteration of the charging instrument." See Ward, 829 S.W.2d at 793.
        This is not a Ward case. Article 26.08 provides for the changing of an accused's name as follows:
        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 . . . and the cause proceed as if the true name had been first recited in the indictment.
 
Tex. Code Crim. Proc. Ann. article 26.08 (Vernon 1989)(emphasis added). However,
if an appellant is known by more than one name, either name can be used in the indictment. Id. art. 21.07 (Vernon 1989); Adwon v, State, 708 S.W.2d 564, 568 (Tex. App.--Houston [1st Dist.] 1986).
        Appellant signed an affidavit of indigency, all plea papers including her confession, and the preprinted notice of appeal with the name "Denise Reyna." Appellant's mother wrote the trial court a letter in which she referred to appellant as both "Denene" and "Denise." We hold that there is evidence to support that appellant is known by both names. We find no reversible error occurred. We overrule appellant's second arguable point.
        We have carefully reviewed the record and counsel's brief. We agree that the appeal is wholly frivolous and without merit. Further, we find nothing in the record that might arguably support the appeal.
        We affirm the trial court's judgment.
 
 
                                                          
                                                          FRANCES MALONEY
                                                          JUSTICE
 
Do Not Publish
Tex. R. App. P. 90
921337F.U05
 
FN:1 Justice Kaplan participated in the submission of this case, but not the issuance of the opinion.
File Date[12-21-92]
File Name[921337F]