DELWIN DEMONT CONWRIGHT, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRM and AFFIRM as MODIFIED and Opinion Filed November 3, 2010
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-09-01409-CR
No. 05-09-01410-CR
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DELWIN DEMONT CONWRIGHT, 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. F08-41101-K, F09-40879-K
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OPINION
Before Justices O'Neill, Richter, and Lang-Miers
Opinion By Justice Richter
        Appellant was convicted of stalking and tampering with a governmental record. In three issues on appeal, appellant challenges the garnishment of funds from his inmate trust account and argues the trial court abused its discretion in sentencing him to ten years' imprisonment in the stalking case and two years' imprisonment in the tampering case. In a cross-point, the State requests we modify the judgment in cause number F08-40879-K to reflect a $750 fine the court orally pronounced but omitted from the written judgment. Finding no reversible error, we affirm the judgment in cause number F08-41101-K, modify the judgment in cause number F08-40879-K to include the $750 fine, and affirm the judgment as modified.
Background
 
        Pursuant to a plea agreement, appellant pled guilty to the offense of stalking and true to a single enhancement allegation. The trial court deferred adjudication of appellant's guilt, placed him on community supervision for four years, and fined him $2,000. The State alleged appellant committed five new offenses while on probation, including the offense of tampering with a governmental record, and moved to adjudicate appellant's guilt. Appellant pled guilty to the tampering offense. The trial court considered the motion to adjudicate guilt and appellant's plea of guilty to the tampering offense in a single proceeding. Appellant admitted all of the alleged violations of his community supervision, but asked the court to continue his community supervision on the stalking offense and place him on community supervision for the tampering offense. The court rejected appellant's request for community supervision, sentenced him to ten years' imprisonment for the stalking offense, and two years' imprisonment and a $750 fine for the tampering offense. On the same day the court signed the judgments, the court also signed a notice in cause number F08-41101-K which provided for the withdrawal of $2315.00 in “court costs, fees, and/or fines” from appellant's inmate trust account. This appeal followed.
 
Garnishment
 
        Contemporaneously with the entry of judgment in cause number F08-41101, the court issued notice pursuant to Tex. Gov't Code Ann. § 501.014 (West Supp. 2009) for the withdrawal of $2315.00 from appellant's inmate trust account to pay court costs and fines. In his first issue, appellant asserts the “garnishment order” cannot stand because it is not supported by the record.   See Footnote 1  Specifically, appellant maintains because the trial court did not impose a fine as part of the sentence, the amount to be garnished is not supported by the record. The State responds that we lack jurisdiction over the “garnishment order” because it is a civil rather than a criminal matter. According to the State, because the notice of appeal references only the criminal judgment, our jurisdiction is confined to the judgment of conviction and sentence assessed in the underlying criminal proceeding.
         In Harrell v. State, 286 S.W.3d 315 (Tex. 2008), the Texas Supreme Court held that a withdrawal notification directing prison officials to withdraw money from an inmate trust account pursuant to section 501.014(e) is a civil matter akin to a garnishment action or an action to obtain a turnover order. Id. at 317-19; see also Johnson v. Tenth Judicial District Court of Appeals at Waco, 280 S.W.3d 866, 869 (Tex. Crim. App. 2008) (holding that withdrawal of funds from inmate trust accounts is not a criminal matter). The Harrell court held that due process entitles an inmate to receive notice and an opportunity to be heard, even though those requirements might be accorded the inmate after funds are withdrawn. Harrell, 286 S.W.3d at 321. Because Harrell had received notice (a copy of the withdrawal notification) and an opportunity to be heard (a motion to rescind),the court concluded he had received all that due process required. Id. The court stated that “appellate review should be by appeal, as in analogous civil post-judgment enforcement actions.” Id. at 321. The court also noted “[w]hile we categorize withdrawal orders as civil, a 'criminal district court' has jurisdiction to issue such orders and to hear any inmate challenges to them.” Id. at 321, n. 30.
        We note at the outset that the intermediate courts of appeal in this state have both civil and criminal jurisdiction. See Tex. Const. art. V, §6; Tex. Code Crim. Proc. Ann. art. 4.01 (West 2006); Tex. Gov't Code Ann. § 22.220 (West Supp. 2010). But we need not determine whether the notice of appeal in this case was sufficient to invoke our jurisdiction over the garnishment because any error pertaining to the garnishment has not been preserved for our review.
        As a prerequisite to presenting a complaint on appeal, a party must have made a timely and specific request, objection, or motion to the trial court. Tex. R. App. P. 33.1(a)(1)(A). The purpose of the specificity required in rule 33.1(a) is to (1) inform the court of the basis of the objection and give it an opportunity to rule on it; and (2) give opposing counsel the opportunity to respond to the complaint. Resendez v. State, 306 S.W.3d 308, 312 (Tex. Crim. App. 2009). Here, there is no indication that appellant complained about the garnishment once he received notice, either by filing a motion to rescind or otherwise. See e.g., Harrell, 286 S.W.3d 315, 317 (considering trial court's denial of motion to rescind); Radolph v. State, No. 10-10-00143-CV, 2010 WL 3342032 at * 1 (Tex. App.-Waco Aug, 25, 2010, no pet. h.) (same). As a result, any issue pertaining to the garnishment has not been preserved for our review. Appellant's first issue is overruled.
Sentencing
 
        In his second and third issues, appellant maintains the trial court abused its discretion by sentencing him to ten years' imprisonment in cause number F08-41101 and two years' imprisonment in cause number F09-40879 because the sentences violate the objectives of the system of prohibitions, penalties, and correctional measures in the penal code. Appellant waived these complaints by failing to object to the sentences at the time they were imposed or in a motion for new trial. See Tex. R. App. P. 33.1(a); Castaneda v. State, 135 S.W.3d 719, 723 (Tex. App.-Dallas 2003, no pet.). Because appellant has not preserved his complaints for our review, we overrule his second and third issues.
the judgment
 
        The State requests that we modify the judgment in cause number F09-40879-K to reflect the $750 fine assessed by the court but omitted from the written judgment. When there is a variance between the trial court's oral pronouncement and the written memorialization of the sentence, the oral pronouncement controls. See Coffey v. State, 979 S.W.2d 326, 328 (Tex. Crim. App. 1998). Here, the trial court orally pronounced a sentence of two years' imprisonment and a $750 fine for the offense of tampering with a governmental record. We have the power to modify judgments when we have the necessary information to do so. See Tex. R. App. P. 43.2(b). Accordingly, we sustain the State's cross- point and modify the judgment in cause number F09-40879-K to include the $750 fine imposed at sentencing.
        Having resolved all of appellant's issues against him, we affirm the trial court's judgment in cause number F08-41101-K, modify the judgment in cause number F09-40879- K to include a $750.00 fine, and affirm the judgment as modified.
                                                          
 
                                                          
                                                          MARTIN RICHTER
                                                          JUSTICE
 
 
 
Do Not Publish
Tex. R. App. P. 47
091409F.U05
        
 
        
        
 
Footnote 1 The Amarillo court of appeals has observed that the notice is not actually an “order” in the traditional sense. See Hodo v. State, No. 07-10-00120-CV, 2010 WL 2427426 at *3 (Tex. App.-Amarillo June 17, 2010, no pet h.). In this regard, the court noted that “the controlling statute, Tex. Gov't Code Ann. § 501.014(e) (West Supp. 2009), describes the process as a 'notification by a court' directing prison officials to withdraw sums from an inmate's trust account, in accordance with a schedule of priorities set by the statute, for the payment of 'any amount the inmate is ordered to pay by order of the court.'” Id. (citing Tex. Gov't Code Ann§§ 501.014(e)(1)-(6); Harrell, 286 S.W.3d at 316 n. 1). But see In re Pannell, 283 S.W.3d 31, 34 (Tex. App.-Fort Worth 2009) (orig. proceeding) (stating withdrawal orders are final, appealable orders). Because characterization of the notice is not before us in the instant appeal, we neither accept nor reject the parties' characterization of the notice as an “order.”