SHERMAN SHEILDS a/k/a Neal Edward Harris III, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRM as MODIFIED and Opinion Filed October 29, 2008
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-08-00059-CR
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SHERMAN SHEILDS a/k/a Neal Edward Harris III, Appellant
V.
THE STATE OF TEXAS, Appellee
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On Appeal from the Criminal District Court No. 4
Dallas County, Texas
Trial Court Cause No. F-06-70889-JK
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MEMORANDUM OPINION
Before Justices Morris, Whittington, and O'Neill
Opinion By Justice O'Neill
        Appellant Sherman Sheilds entered an open plea of guilty to the offense of aggravated robbery with a deadly weapon. After a punishment hearing, the trial court sentenced him to thirty years' confinement. In his first point, appellant alleges the trial court failed to comply with Texas Code of Criminal Procedure article 26.08 when it did not insert his corrected name in the indictment and style of the case. In his remaining two points, he argues his sentence violates both the United States and Texas Constitutions because it is grossly disproportionate to the crime. We modify the trial court's judgment to reflect appellant's true name, and as modified, affirm.
        We issue this memorandum opinion pursuant to Texas Rule of Appellate Procedure 47.1 because the applicable law is well settled. The facts and procedural history of this appeal are well known to the parties; therefore, we do not relate them in detail here.
Incorrect Name in Indictment
        In his first point, appellant claims the trial court erred by failing to correct the indictment and style of the case as required by Texas Code of Criminal Procedure article 26.08 after he informed the trial court his true name was Neal Edward Harris III.
        Originally upon his arrest, appellant told officers his name was Sherman Sheilds because he was nervous and scared. He also later sent a letter to the trial court requesting probation and signed it Sherman Sheilds. It was not until he sent a pro se motion for ineffective assistance of counsel to the trial court that he informed the trial court of his real name. He captioned his motion “The State of Texas vs. Sherman Sheilds aka Neal E. Harris III” and also signed it “Sherman Sheilds aka Neal E. Harris III.”
        Before pleading guilty, appellant again clarified to the trial court that his real name was Neal Edward Harris III. He also testified during his punishment hearing that he never intentionally tried to deceive the police because he knew as soon as they fingerprinted him, they would discover his true identity. However, despite being aware of his true name, the trial court never corrected the indictment or the style of the case. Appellant contends this error requires reversal of his conviction and a new trial. We disagree.
        Article 26.08 provides the following:
 
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.
 
Tex. Code Crim. Proc. Ann. art. 26.08 (Vernon 1989). Under article 26.08, the trial court erred by not correcting the indictment and style of the case; however, the purpose of naming the accused is for identification and is a defect of form that can easily be corrected. See Jones v. State, 504 S.W.2d 442, 444 (Tex. Crim. App. 1974); see also Kelly v. State, 823 S.W.2d 300, 302 (Tex. Crim. App. 1992) (changes to a defendant's name are ministerial acts). Thus, the trial court's failure to correct his name is reversible error only upon a showing that the court violated his substantial rights. Tex. Code Crim. Proc. Ann. art. 21.19 (Vernon 1989) (“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.”).
        Appellant has not argued the trial court violated his substantial rights in any way. Further, appellant did not in the trial court, and does not on appeal, complain he is not the same individual named in the indictment. In fact, he specifically referred to himself as “Sherman Sheilds aka Neal Edward Harris III” and admitted to the court he was the same person guilty of committing the offense. Because appellant's identity was not a contested issue, we conclude his substantial rights were not violated by the trial court's error in not correcting his true name; consequently, we conclude the error was harmless. See Jones, 504 S.W.2d at 444.
        Under Texas Rule of Appellate Procedure 43.2(b), we may modify the trial court's judgment and affirm as modified. Tex. R. App. P. 43.2(b). And we note the State requests we do so. Thus, we modify the trial court's judgment to reflect the true name of appellant as Neal Edward Harris III. Id.; see also Asberry v. State, 813 S.W.2d 526, 529 (Tex. App.-Dallas 1991, pet. ref'd) (recognizing court's authority to correct clerical errors contained in the judgment). As modified, we overrule appellant's first point.
 
Constitutionality of Sentence
        Appellant asserts his thirty-year sentence violates his constitutional rights under both the United States and Texas Constitutions because it is grossly disproportionate to the crime. See U.S. Const. amend. VIII; Tex. Const. art. I, § 19. Appellant has failed to preserve his arguments for review.
        As a prerequisite to presenting a complaint for appellate review, the record must show appellant made a timely and specific objection, request, or motion to the trial court. Tex. R. App. P. 33.1(a)(1). Even constitutional rights, including the right to be free from cruel and unusual punishment, may be forfeited by the failure to object. Castaneda v. State, 135 S.W.3d 719, 723 (Tex. App.-Dallas 2003, no pet.). When asked whether there was any reason in law why appellant should not be sentenced, appellant's counsel stated “no, Your Honor.” Consequently, by not raising an objection, appellant preserved nothing for review and points two and three are resolved against him.   See Footnote 1 
        Having overruled appellant's points, we affirm as modified, the trial court's judgment.
 
                                                          
                                                          MICHAEL J. O'NEILL
                                                          JUSTICE
 
Do Not Publish
Tex. R. App. P. 47
080059F.U05
 
 
Footnote 1 Appellant cites Schneider v. State, 645 S.W.2d 463, 466 (Tex. Crim. App. 1983) for the proposition that if an error rises to the level of “constitutional infirmity,” it may be addressed for the first time on appeal, as the court did in Schneider. However, the Schneider court first determined appellant failed to preserve his arguments regarding cruel and unusual punishment because he failed to object. Thus, the remaining discussion of the issues, which the court ultimately overruled, are mere dicta and do not support appellant's argument. Id. at 466.