BRODERICK CARTER, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRM as modified; Opinion issued September 16, 2010
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-10-00160-CR
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BRODERICK CARTER, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the Criminal District Court No. 2
Dallas County, Texas
Trial Court Cause No. F03-01633-QI
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MEMORANDUM OPINION
Before Justices FitzGerald, Murphy, and Fillmore
Opinion By Justice Fillmore
        Broderick Carter appeals from the adjudication of his guilt for sexual assault of a child. In three issues, Carter contends (1) the sentence imposed by the trial court violates rehabilitative objectives of the penal code, (2) the judgment should be modified because it incorrectly recites that the trial court found to be true all of the State's allegations in the motion to proceed with the adjudication of guilt, and (3) the judgment should be modified to show the correct age of the victim. We modify and affirm the trial court's judgment. Because the background of this case and the evidence adduced at trial are well known to the parties, we limit recitation of the facts. We issue this memorandum opinion pursuant to Texas Rule of Appellate Procedure 47.4 because the law to be applied in the case is well settled.
Background
 
        Carter waived a jury and pleaded guilty to sexual assault of a child. See Tex. Penal Code Ann. § 22.011(a)(2)(A) (West Supp. 2010). Pursuant to a plea agreement, the trial court deferred adjudicating guilt, placed Carter on ten years' community supervision, and assessed a $1000 fine. The State later moved to adjudicate guilt, alleging Carter violated the terms of his community supervision. At a hearing on the motion, Carter pleaded true to violating one condition of his community supervision. The trial court found the allegation true, adjudicated Carter guilty, and assessed punishment at four years' imprisonment.
Analysis
 
        In his first issue, Carter contends the sentence was not necessary to prevent a recurrence of his criminal behavior, it does not meet the objectives of rehabilitation, and it does not recognize the differences in rehabilitative possibilities among individual defendants. Carter asserts he presents a low risk of re-offending and there is nothing in the record to suggest he is beyond redemption or could not be rehabilitated. The State responds that Carter failed to preserve his complaint for appellate review and, alternatively, the record does not support Carter's claims.
        Carter did not complain about the sentence either at the time it was imposed or in a 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, record must show appellant made timely request, objection, or motion). Even constitutional rights, including the right to be free from cruel and unusual punishment, may be waived. Rhoades v. State, 934 S.W.2d 113, 120 (Tex. Crim. App. 1996); Castaneda, 135 S.W.3d at 723. By failing to advance in the trial court the claims contained in his first issue, Carter failed to preserve the issue for appellate review.
        Further, even if Carter had preserved error, his arguments still fail. The trial court imposed punishment within the statutory range for the offense. See Tex. Penal Code Ann. §§ 12.33, 22.011(f) (West 2003 & Supp. 2010). As a general rule, punishment that is assessed within the statutory range for the offense will not be disturbed on appeal. Jackson v. State, 680 S.W.2d 809, 814 (Tex. Crim. App. 1984). Further, by sentencing Carter to a punishment within the statutory punishment range, the trial court complied with the objectives of the Texas Penal Code. See Tex. Penal Code Ann. § 1.02 (West 2003); Carpenter v. State, 783 S.W.2d 232, 232-33 (Tex. App.-Dallas 1989, no pet.). We resolve Carter's first issue against him.
        In his second and third issues, Carter contends the written judgment should be modified to show that the State abandoned all but one allegation in its motion to adjudicate and to indicate the age of the victim. The State concedes the judgment should be modified to indicate the age of the victim, but asserts that, because the record reflects the State abandoned all but one of the allegations in its motion to adjudicate, the judgment correctly reflects the trial court's ruling.
        In its motion to adjudicate, the State alleged Carter violated conditions (j), (k), and (p) of his community supervision by failing to pay probation, crime stoppers, and urinalysis fees; violated condition (s) of his community supervision by going within 1000 feet of a child safety zone; and violated condition (r) of his community supervision by failing to participate in sex offender counseling. At some point, lines were drawn through the allegation in the motion to adjudicate that Carter violated condition (s) of his community supervision. Further, during the hearing on the motion, the State orally abandoned it allegations of violations of conditions (j), (k), (p), and (s) and went forward with its allegation of a violation of condition (r), failing to participate in sex offender counseling. Carter pleaded true to violating condition (r).
        The written judgment recites that Carter violated the conditions of his community supervision as set out in the State's “original motion to adjudicate guilt.” The motion to adjudicate contained in the record lists all five of the allegations stated above. Lines have been drawn through condition (s), demonstrating that allegation has been withdrawn. However, although the State orally withdrew the allegations that Carter violated conditions (j), (k), and (p), the motion to adjudicate does not indicate the State abandoned those allegations. Thus, the written judgment does not accurately reflect the condition of community supervision that Carter violated. We sustain Carter's second issue
        In his third issue, Carter asserts the judgment should be modified to indicate the victim's age. The judgment recites the “age of the victim at the time of the offense was unknown.” However, Bill Bruner, the registered sex offender treatment provider who had been providing treatment to Carter, testified the victim was fifteen years old, and Carter answered affirmatively when asked if the victim “was what, fifteen, sixteen?” We sustain Carter's third issue.
        We modify the trial court's judgment adjudicating guilt to show Carter pleaded true to violating condition (r) of his community supervision, the trial court found Carter violated condition (r) of his community supervision, and the victim was fifteen years old. 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 adjudicating guilt.
 
 
                                                          
                                                          ROBERT M. FILLMORE
                                                          JUSTICE
 
Do Not Publish
Tex. R. App. P. 47
100160F.U05