RICARDO VILLANUEVA, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRM as modified; Opinion issued May 3, 2010
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-09-00819-CR
No. 05-09-00820-CR
 
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RICARDO VILLANUEVA, 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 Nos. F09-51182-K, F09-51366-K
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OPINION
Before Justices Bridges, FitzGerald, and Fillmore
Opinion By Justice FitzGerald
        Ricardo Villanueva waived a jury and pleaded guilty to two aggravated robbery with a deadly weapon offenses. See Tex. Penal Code Ann. §§ 29.02(a)(2), 29.03(a)(2) (Vernon 2003). After finding appellant guilty, the trial court assessed punishment at fifteen years' imprisonment in each case, and a $1000 fine in one case. In two issues, appellant contends the trial court abused its discretion by sentencing him to imprisonment in each case. We affirm the trial court's judgments.
        Appellant contends the trial court abused its discretion and violated the objectives of the Texas Penal Code by sentencing him to fifteen years' imprisonment because the sentences are not necessary to prevent the recurrence of his criminal behavior. Appellant asserts that because he was working toward obtaining his GED, went to church regularly, and had a supportive family, he should have received a milder punishment. Appellant also argues that because he denied being a gang member and explained that his motive for committing the offenses was only to impress others who had exerted a bad influence on him, the trial court abused its discretion in sentencing him to prison. The State responds that appellant has failed to preserve his complaints for appellate review and, alternatively, the record does not support appellant's claims.
        Appellant did not complain about the sentences either at the time they were imposed or in his motions 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 sentences, and his motions for new trial complained that the verdicts were 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 arguments still fail. 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 offenses. See Tex. Penal Code Ann. §§ 12.32, 29.03(b) (Vernon 2003).
        We conclude the trial court did not abuse its discretion in assessing the fifteen-year sentences. 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 two issues against him.
        We note the record shows that in cause no. 05-09-00819-CR, the trial court orally pronounced a $1000 fine when it imposed the fifteen-year sentence. The trial court's judgment, however, does not recite the fine. 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 $1000 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).
        In cause no. 05-09-00819-CR, we affirm the trial court's judgment as modified. In cause no. 05-09-00820-CR, we affirm the trial court's judgment.
 
 
                                                          
                                                          KERRY P. FITZGERALD
                                                          JUSTICE
 
Do Not Publish
Tex. R. App. P. 47
090819F.U05