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1 No CR No CR No CR No CR No CR The State Requests Oral Argument Only If Appellant Requests Oral Argument IN THE COURT OF APPEALS FOR THE FIFTH DISTRICT OF TEXAS AT DALLAS MARCUS DEWAYNE WRIGHT, Appellant v. THE STATE OF TEXAS, Appellee On appeal from the 194th Judicial District Court of Dallas County, Texas In Cause Numbers F TM, F QM, F QM, F QM, & F LM. STATE S BRIEF Counsel of Record: CRAIG WATKINS JOE C. LOCKHART CRIMINAL DISTRICT ATTORNEY ASSISTANT DISTRICT ATTORNEY DALLAS COUNTY, TEXAS STATE BAR NO FRANK CROWLEY COURTS BUILDING 133 N. RIVERFRONT BLVD., LB-19 DALLAS, TEXAS (214) ; (214) fax ATTORNEYS FOR THE STATE OF TEXAS

2 INDEX OF AUTHORITIES STATEMENT OF THE CASE 1 ISSUES PRESENTED 2 STATEMENT OF FACTS 3 SUMMARY OF THE ARGUMENT 6 ARGUMENT 7 TABLE OF CONTENTS iv RESPONSE TO POINT OF ERROR ONE 7 The judgment in Cause No. F QM should be reformed to reflect the seven-year imprisonment sentence as pronounced by the trial court. RESPONSE TO POINT OF ERROR TWO 9 The judgment in Cause No. F QM should be reformed to reflect the sentence of ten years imprisonment probated for ten years as pronounced by the trial court. RESPONSE TO POINT OF ERROR THREE 10 The record does not show a conflict between the judgment in Cause No. F LM and the oral pronouncement of sentence sufficient to require that the judgment be reformed or that the cause be abated to the trial court. RESPONSE TO POINT OF ERROR FOUR 12 The record shows that the trial court did not order the stacking or cumulation of any of the sentences. RESPONSE TO POINT OF ERROR FIVE 16 The trial court did not abuse its discretion in imposing a seven-year term of imprisonment, and the sentence did not violate the objectives of the system of prohibitions, penalties, and correctional measures in the Penal Code. PRAYER 18 CERTIFICATE OF SERVICE 18 ii

3 INDEX OF AUTHORITIES Cases Aguilar v. State, 202 S.W.3d 840 (Tex. App. Waco 2006, pet. ref d) 12 Asberry v. State, 813 S.W.2d 526 (Tex. App. Dallas 1991, pet. ref d) 8 Beedy v. State, 250 S.W.3d 107 (Tex. Crim. App. 2008) Castaneda v. State, 135 S.W.3d 719 (Tex. App. Dallas 2003, no pet.) 16 Rhoades v. State, 934 S.W.2d 113 (Tex. Crim. App. 1996) 16 Theriot v. State, No CR, 2009 Tex. App. LEXIS 7215 (Tex. App. Dallas Sept. 15, 2009, no pet.) (not designated for publication) 16 Thompson v. State, 108 S.W.3d 287 (Tex. Crim. App. 2003) 8-9 Williams v. State, 675 S.W.2d 754 (Tex. Crim. App. 1984) 15 Ex parte Wilson, 716 S.W.2d 953 (Tex. Crim. App. 1986) 11 Statutes and Rules TEX. CODE CRIM. PROC. ANN. art (Vernon Supp. 2009) 15 TEX. HEALTH & SAFETY CODE ANN (c) (Vernon Supp. 2009) 17 TEX. PEN. CODE ANN (Vernon 2003) 17 TEX. R. APP. P. 33.1(a)(1) 16 iii

4 TO THE HONORABLE COURT OF APPEALS: The State of Texas submits this brief in reply to the brief of Appellant. STATEMENT OF THE CASE Appellant, Marcus Dewayne Wright, appeals the sentences imposed in five cases. 1 (1) In Cause No. F TM ( CR), Appellant was charged with possession of one gram or more but less than four grams of cocaine with intent to deliver. (CRA: 2). (2) In Cause No. F QM ( CR), Appellant was charged with possession of one gram or more but less than four grams of cocaine with intent to deliver and use or exhibition of a deadly weapon in the commission of the offense. (CRB: 2). (3) In Cause No. F QM ( CR), Appellant was charged with possession of marijuana of five pounds or less but more than four ounces enhanced by two prior felony convictions. (CRC: 2). (4) In Cause No. F QM ( CR), Appellant was charged with possession of a firearm by a felon. (CRD: 2). (5) In Cause No. F LM ( CR), Appellant was charged with possession of a firearm by a felon. (CRE: 2). On January 21, 2009, Appellant signed judicial confessions and pled guilty to the charges in each of the five above-referenced cases without a plea bargain agreement. (RR2: 10; CRA: 34; CRB: 23; CRC: 8; CRD: 10; CRE: 7). Appellant also pled true to the deadly weapon allegation in one possession with intent to deliver case and pled true to the two enhancement paragraphs in the marijuana case. (RR2: 10-11). 1 Consistent with Appellant s brief, the respective clerk s records are referred to herein as: CRA F TM, CRB F QM, CRC--F QM, CRD--F QM, and CRE F LM. A sixth case, F M ( CR), which charged possession of a weapon in a tavern, was dismissed on March 23,

5 On February 13, 2009, the trial court sentenced Appellant as follows: F TM 10 years deferred adjudication probation and a $1,000 fine (RR3: 50); F QM 7 years confinement in the State penitentiary (RR3: 50); F QM 10 years community supervision (RR3: 51, 58); F QM 10 years community supervision (RR3: 51); F LM 10 years community supervision (RR3: 58). On February 16, 2009, Appellant filed timely notices of appeal. (CRA: 43; CRB: 32; CRC: 14; CRD: 19; CRE: 16). ISSUES PRESENTED 1. Whether the judgment in Cause No. F should be reformed to reflect the correct sentence pronounced by the trial court. 2. Whether the judgment in Cause No. F should be reformed to reflect the correct sentence pronounced by the trial court. 3. Whether Cause No. F LM should be abated to the trial court so as to determine the exact sentence imposed. 4. Whether the cumulative effect of the trial court s sentencing orders constitutes an illegal stacking or cumulation of sentences. 5. Whether the trial court abused its discretion in imposing a seven-year term of imprisonment by reason of the punishment violating the objectives of the system of prohibitions, penalties, and correctional measures in the Penal Code. STATEMENT OF FACTS At the sentencing hearing on February 13, 2009, the prosecutor asked the Court to take judicial notice of the contents of the PSI and the CATS evaluation prepared in these cases as well as the narratives in the Court s file. (RR3: 5). The trial court then 2

6 permitted the prosecutor to present an oral stipulation after the defendant personally consented and waived the right of cross-examination. (RR3: 6). As outlined by the prosecutor, on February 7, 2007, officers investigating drug sales at a house in Garland obtained consent from Brandy Harris, who lived at the house, to enter and look for drugs. (RR3: 7). All the individuals in the house were detained, and Appellant, who was an occupant of the house, was found to have cocaine in his possession. Id. (This incident resulted in the indictment in Cause Number F TM). (CRA: 2) The prosecutor next described an incident that occurred on July 2, 2008, where a Garland SWAT team executed a search warrant at Appellant s apartment on Wood Meadow Parkway. (RR3: 8). The search warrant was obtained based on drug buys having been made from the apartment. Id. The items seized included cocaine, marijuana, and a 9 millimeter pistol. Id. In addition to cocaine and marijuana charges, Appellant was charged with unlawful possession of a firearm by a felon based on his possession of the pistol and his prior felony conviction for possession of a controlled substance. (RR3: 9). (This incident resulted in the indictments in Cause Numbers F QM, F QM, and F QM). (See CRB: 2; CRC: 2; CRD: 2). Dallas Police Officer Karl Humphreys testified concerning an incident that occurred about 2:00 a.m. on January 19, 2008 while he and his partner were on patrol in the 2100 block of Northwest Highway. (RR3: 10). As the officers drove through the parking lot behind the Dallas Gentlemen s Club, Appellant walked in front of the patrol car. Id. When Humphreys saw that Appellant was holding the handle of what appeared to be a gun underneath his baggy blue jeans, he told his partner to stop. (RR3: 11). When Humphreys got out of the car, Appellant walked faster towards the back of the building between cars and pulled the gun out; Humphreys then pulled out his weapon. (RR3: 13). After Appellant ducked down in front of a car, another officer ran toward Appellant, and Appellant opened both his hands as he ran to Humphrey s left. (RR3: 3

7 14). Appellant was then subdued and handcuffed about 50 to 75 feet away. Id. Appellant did not have the gun with him when he ran off, but the gun was recovered from under the front bumper of a car. (RR3: 15). Following the January 19, 2008 incident, Appellant was charged with unlawful possession of a firearm by a felon. (RR3: 18-19). (This incident resulted in the indictment in Cause Number F LM). (CRE: 2). Appellant was also charged with unlawful possession of a firearm at a tavern and with evading arrest. (RR3: 19). After the State rested, Appellant testified in his own behalf. (RR3: 20). Appellant admitted his guilt to each of the offenses with which he was charged. (RR3: 23). He then discussed his background that included his parents having drug and alcohol problems and both being sent to the penitentiary throughout his early childhood. (RR3: 24). Appellant testified that he started using drugs about age 13 and that the drugs included marijuana, cocaine, and wet, which is embalming fluid and other things. (RR3: 25). Appellant testified that he had not had significant drug treatment, nor had he been treated for Bipolar Disorder. (RR3: 27). Appellant asked the judge to give him another chance to change his life by giving him treatment and getting him away from drugs. (RR3: 29). On cross-examination, Appellant testified that no sales were made out of the apartment where he lived with his girlfriend. (RR3: 37). Appellant testified that the gun found at the apartment was there for protection. Id. Concerning the packaging of drugs, Appellant testified that he did not know if there were bags of crack but that the weed or marijuana was packaged up because he was smoking it and distributing it. (RR3: 38). Appellant testified that the gun that he had at the club belonged to a friend and that he took it to the club to sell it to another friend. (RR3: 38-40). Concerning his criminal record, Appellant testified that he had been convicted of burglary, evading arrest, and driving with a suspended license. (RR3: 40). Appellant testified that he had been to TYC for an aggravated assault. (RR3: 41). He further 4

8 testified that he had committed burglaries in 2001 and had a state jail drug conviction in 2003 for which he served 180 days. (RR3: 41). Appellant admitting selling drugs to support his habit but denied commonly selling guns. (RR3: 43). Appellant testified that during his teenage years in Garland he ran with a Crip gang but added that he did not associate with those people anymore. (RR3: 44). SUMMARY OF THE ARGUMENT In Cause No. F QM, the written judgment should be reformed to reflect the seven-year imprisonment sentence orally pronounced by the trial court. In Cause No. F QM, the written judgment should be reformed to reflect the suspended ten-year imprisonment sentence, probated for ten years orally pronounced by the trial court. In Cause No. F LM, the trial court imposed a suspended ten-year sentence, probated for ten years. The record does not show a conflict between the judgment and the oral pronouncement of sentence sufficient to require that the judgment be reformed or that the cause be abated to the trial court. By placing Appellant on probation at this time, the trial court clearly ordered the 10-year probationary periods to begin on the same date (February 13, 2009) as the seven-year imprisonment sentence. Thus, the sentences are to run concurrently. There was no illegal stacking. Appellant failed to preserve for review the contention that the trial court abused its discretion in imposing an imprisonment sentence. The seven-year sentence was not overly harsh as it was well within the statutory range of punishment. Moreover, the record shows that the trial court considered the Penal Code objective of rehabilitation by stating that Appellant would be placed in a drug treatment program as a condition of 5

9 community supervision following his release from the penitentiary. Further, in light of Appellant s extensive criminal record, it was reasonable to impose an imprisonment sentence. ARGUMENT RESPONSE TO POINT OF ERROR ONE The judgment in Cause No. F QM should be reformed to reflect the seven-year imprisonment sentence as pronounced by the trial court. Appellant contends that in Cause No. F QM the judgment should be modified to reflect the correct sentence pronounced by the trial court. The State agrees that the judgment should be reformed to reflect the seven-year imprisonment sentence as pronounced by the trial court. A. Underlying Facts Appellant was charged in Cause No. F QM ( CR) with possession of one gram or more but less than four grams of cocaine with intent to deliver and with use or exhibition of a deadly weapon in the commission of the offense. (CRB: 2). The trial court accepted Appellant s guilty plea and assessed punishment as follows: in the second case, wherein Cause No. F QM, wherein you were later, in 2008, arrested again while out on bond in that other case for unlawful possession with intent to deliver a controlled substance, which is cocaine. In that case, I m going to assess you a sentence of seven years confinement in the State penitentiary, no fine, and I ll give you credit for all the back time that you served in that case. (RR3: 49-50). The trial court later imposed the seven-year sentence with credit for back time and with no fine. (RR3: 51). The court further made a deadly weapon finding. (RR3: 53). The judgment in Cause No. F QM, however, reflects a suspended sentence of ten years and the placing of Appellant on community supervision for ten years. (CRB: 25). 6

10 B. Analysis When there is a conflict between the oral pronouncement of sentence in open court and the sentence set out in the written judgment, the oral pronouncement controls. Thompson v. State, 108 S.W.3d 287, 290 (Tex. Crim. App. 2003). The solution in those cases in which the oral pronouncement and the written judgment conflict is to reform the written judgment to conform to the sentence that was orally pronounced. Id. This Court has noted that judgments in criminal cases, unlike those in civil cases, are generally prepared by clerks or other court personnel, and are not normally submitted to the parties for approval as to form. Asberry v. State, 813 S.W.2d 526, 531 (Tex. App. Dallas 1991, pet. ref d). Often the parties learn of the judgment s recitations for the first time when the record is examined for appellate purposes and after the trial court has lost jurisdiction of the cause. Id. In the present case, the State agrees with the first two paragraphs of Appellant s argument in support of his first point of error where he states that it was error for the written judgment in Cause No. F QM to reflect a ten-year imprisonment sentence probated for ten years when the trial court s oral pronouncement was a seven-year confinement sentence. 2 (Appellant s Br. at 7-8). The State further agrees with Appellant that the written judgment is incorrect and should be modified to reflect the proper sentence imposed by the trial court. RESPONSE TO POINT OF ERROR TWO The judgment in Cause No. F QM should be reformed to reflect the sentence of ten years imprisonment probated for ten years as pronounced by the trial court. Appellant contends that in Cause No. F QM the judgment should be modified to reflect the correct sentence pronounced by the trial court. The State agrees 2 Although the last paragraph of Appellant s argument in support of his first point of error states that the judgment reflects a seven-year imprisonment sentence, it is clear from Appellant s first two paragraphs and the clerk s record (CRB: 25) that the judgment (incorrectly) states a ten-year sentence probated for ten years. (Appellant s Br. at 7-8). 7

11 that the judgment should be reformed to reflect the sentence of ten years imprisonment probated for ten years pronounced by the trial court. A. Underlying Facts Appellant was charged in Cause No. F QM ( CR) with possession of marijuana of five pounds or less but more than four ounces enhanced by two prior felony convictions. (CRC: 2). The trial court accepted Appellant s guilty plea and assessed punishment as follows: in the marijuana case, and in the first two possession of firearm cases, I m going place (sic) you on probation for a ten-year period of time in each of those cases; however, I find you guilty in each of those cases, but place you on probation for a ten-year period of time under the conditions of probation. (RR3: 51). The judgment in Cause No. F QM, however, reflects a seven-year term of imprisonment. (CRC: 10). B. Analysis When there is a conflict between the oral pronouncement of sentence in open court and the sentence set out in the written judgment, the oral pronouncement controls. Thompson v. State, 108 S.W.3d 287, 290 (Tex. Crim. App. 2003). The solution in those cases in which the oral pronouncement and the written judgment conflict is to reform the written judgment to conform to the sentence that was orally pronounced. Id. In the present case, the State agrees with Appellant that it was error for the written judgment in Cause No. F QM to reflect a seven-year term of imprisonment when the trial court s oral pronouncement was ten years imprisonment, probated for ten years. (Appellant s Br. at 9-10). The State further agrees with Appellant that the written judgment is incorrect and should be modified to reflect the proper sentence imposed by the trial court. RESPONSE TO POINT OF ERROR THREE The record does not show a conflict between the judgment in Cause No. F LM and the oral pronouncement of sentence sufficient to require that the judgment be 8

12 reformed or that the cause be abated to the trial court. Appellant contends that Cause No. F LM should be abated to the trial court so as to determine the exact sentence assessed in that case. The State submits that the record does not show a conflict between the judgment and the oral pronouncement of sentence sufficient to require that the judgment be reformed or that the cause be abated to the trial court. A. Underlying Facts Following the initial assessment and imposition of sentences in the instant causes, the trial court agreed to reconsider the sentences after Appellant asked that sentences of seven years confinement be imposed in each case. (RR3: 55). After further testimony by Appellant and argument of counsel, the court clarified the sentences in three cases: THE COURT: First, in Cause No(s). F UM, wherein that cause was unlawful possession of a firearm in a tavern. And in Cause No. F UM when the case was the charge was unlawful possession of a firearm by a felon and Cause No. F QM, the charge being unlawful possession of marijuana. In each of those cases, I had placed the Defendant on ten years straight probation. And I want the record to be clear on this. My sentence actually in that case is that I have sentenced the Defendant to ten years in the State penitentiary, but probated it for the ten year period of time, and no fine in those cases. However, in the other cases, my sentences are going to remain the same.... (RR3: 58). (Emphasis added). The judgment in Cause No. F LM reflects a suspended sentence of ten years and the placing of Appellant on community supervision for ten years. (CRE: 9). B. Analysis Appellant points to the portion of the record where the court assessed seven years confinement in the third possession of a firearm by a felon case (RR3: 51) and stated that he was sentencing Appellant to seven years imprisonment in two cases. Id. Thus, 9

13 Appellant argues that the trial court may have misspoken or confused the cause numbers and that the judgment may be incorrect in Cause No. F M. Appellant further argues that it is impossible to be positive, and this case should be abated to the trial court to ascertain exactly what sentence the trial court imposed. (Appellant s Br. at 10-11). The trial court s above-quoted language following reconsideration of the sentences, however, is clear and consistent with the judgment that the sentence in Cause No. F LM was a suspended ten-year sentence, probated for ten years. (CRE: 9; RR3: 58). There is a presumption of the regularity of the judgment of conviction and the proceedings absent a showing to the contrary. Ex parte Wilson, 716 S.W.2d 953, 956 (Tex. Crim. App. 1986). The burden is on the defendant to overcome the presumption. Id. Moreover, not every variation between an oral pronouncement of sentence and the written judgment will constitute a conflict affecting the validity of the judgment. See Aguilar v. State, 202 S.W.3d 840, (Tex. App. Waco 2006, pet. ref d). In the present case, trial court s oral pronouncement following reconsideration of the sentences, is clear and consistent with the judgment that the sentence in Cause No. F LM was a suspended ten-year sentence, probated for ten years. Thus, the record does not show a conflict between the judgment and the oral pronouncement of sentence sufficient to require that the judgment be reformed or that the cause be abated to the trial court. RESPONSE TO POINT OF ERROR FOUR The record shows that the trial court did not order the stacking or cumulation of any of the sentences. Appellant argues that the cumulative effect of the trial court s sentencing orders in each case constitutes an illegal stacking or cumulation of sentences. That is, Appellant argues that the trial court has, in effect, entered illegal cumulation orders in all cases in which his sentence was suspended and in which he was placed either on deferred 10

14 unadjudicated probation or on regular community supervision by ordering that his probation not commence until he had completed his term(s) of imprisonment. (Appellant s Br. at 11). In response, the State submits that the record clearly shows that although the trial court ordered that compliance with the terms and conditions of community supervision be delayed until after Appellant s release from the penitentiary, the periods of probation or community supervision commenced immediately upon pronouncement of sentence. There was thus no stacking or cumulation of sentences. A. Underlying Facts The record shows that the trial court placed Appellant on a ten-year term of deferred and unadjudicated probation in Cause No. F and ordered him to pay a $1,000 fine. The Court stated: At this time, I place you on probation for the ten-year period of time. (RR3: 52) (Emphasis added). The court then explained that the terms and conditions will not go into effect until Mr. Wright is released from the State penitentiary. You don t have to start any of them. Id. Concerning three other cases in which Appellant was placed on ten-year straight probation, the court stated there s no fines in any of those cases. And none of those terms and conditions go into effect until he s released from the penitentiary. Id. The Court added: Now, so he will be placed on probation at this time in those cases. Id. (Emphasis added). The Court further stated that it was the Court s intention to put Appellant in a drug treatment program as a part of his probation after his release from the penitentiary. (RR3: 52-53). After the court re-opened consideration of the sentences, Appellant testified and responded in the affirmative that he was requesting the Court to give him seven (years imprisonment) on all of the cases. (RR3: 55). When asked why he would want to do that, Appellant stated, Because I don t see the point of me being on ten years probation upon my release from the penitentiary. Id. Appellant s counsel then asked the 11

15 following questions that made clear to Appellant that the periods of probation ordered by the Court would begin immediately: Q. All right. If I understand what the Judge has told us here this morning, the probation starts today, this morning. But, obviously, you will not be able to report to the probation officers and do anything they want you to do until you re released from the penitentiary; you understand that? A. Yes, sir. Q. So it s not like you re going to do you seven and then start the ten year probation. The ten years starts today that you re on probation. It s just that they are not going to require you to do the conditions of probation until you get out of the penitentiary? A. I understand. (RR3: 55-56) (Emphasis added). B. Analysis Appellant first argues that the law is clear that an order of deferred unadjudicated probation cannot be stacked onto a prison sentence. (Appellant s Br. at 13). Appellant cites Beedy v. State, 250 S.W.3d 107 (Tex. Crim. App. 2008). In Beedy the court of appeals had deleted a cumulation order that ordered the defendant s deferred adjudication supervision term to begin after his prison sentence ended. Id. at 108. The Court of Criminal Appeals concluded that the court of appeals did not err in deleting the cumulation order. Id. at 115. The present case is distinguishable from Beedy. First, as Appellant recognizes, there was no cumulation order in the present case. Second, the Court of Criminal Appeals in Beedy held that the court of appeals did not err in deleting the trial court s cumulation order that ordered the defendant s deferred adjudication community supervision term to begin after his prison sentence ended. Beedy, 250 S.W.3d at 108, 115. In Appellant s Cause No. F TM, however, the trial court stated twice that 12

16 Appellant was placed on probation at this time (RR3: 52), and the order setting out the Conditions of Community Supervision states that Appellant was placed on Community Supervision on this date 2/13/09 for a period of 10 years. (CRA: 38). Where a defendant has been convicted in two or more cases, a sentence imposed or suspended may be ordered to begin when the judgment and sentence imposed or suspended in the preceding conviction has ceased to operate or the sentence imposed or suspended may be ordered to run concurrently with the other case or cases. See TEX. CODE CRIM. PROC. ANN. art (Vernon Supp. 2009). The terms cumulative and consecutive when used in the context of criminal sentencing are synonymous with the term stacked and refer to a sentence that begins after another sentence has ceased to operate. See Williams v. State, 675 S.W.2d 754, 762 (Tex. Crim. App. 1984). In the present case, while the trial court stated that Appellant would not be required to start any of the conditions of probation until released from the penitentiary (RR3: 52), nothing in the record indicates that the probationary periods were to begin after Appellant is released from the penitentiary. Rather, by placing Appellant on probation at this time (RR3: 52), the trial court clearly ordered the 10-year probationary periods to begin on February 13, 2009, the date the sentences were imposed. The probationary periods thus began on the same date as the seven-year term of imprisonment so that all the sentences are to run concurrently. Therefore, there was no illegal stacking of sentences. Appellant s fourth point of error should be overruled. RESPONSE TO POINT OF ERROR FIVE The trial court did not abuse its discretion in imposing a seven-year term of imprisonment, and the sentence did not violate the objectives of the system of prohibitions, penalties, and correctional measures in the Penal Code. Appellant contends that the trial court abused its discretion in imposing a seven-year imprisonment sentence. That is, Appellant contends that the seven-year sentence violates the objectives of the system of prohibitions, penalties, and correctional 13

17 measures in the Penal Code in that imprisonment does not meet the objective of rehabilitation. Appellant further contends that in light of Appellant s desire for drug treatment and the trial court s recognition that drug treatment was appropriate, it is clear that any sentence of imprisonment is overly harsh and designed to thwart prompt rehabilitation. In response, the State submits that the issue presented was not preserved for appellate review. Moreover, the trial court did not abuse its discretion in imposing a seven-year term of imprisonment, and the sentence did not violate the objectives of the system of prohibitions, penalties, and correctional measures in the Penal Code. A. Preservation of Error For error to be preserved for appeal the record must show that the Appellant made a timely request, objection, or motion. TEX. R. APP. P. 33.1(a)(1). Because Appellant did not raise the issue presented on appeal either at trial or in a motion for new trial, Appellant failed to preserve the issue for appellate review. See Rhoades v. State, 934 S.W.2d 113, 120 (Tex. Crim. App. 1996); Castaneda v. State, 135 S.W.3d 719, 723 (Tex. App. Dallas 2003, no pet.); Theriot v. State, No CR, 2009 Tex. App. LEXIS 7215 (Tex. App. Dallas Sept. 15, 2009, no pet.) (not designated for publication). B. Analysis Even if Appellant s contention were subject to review on the merits, the record does not support the conclusion that the seven-year imprisonment sentence was overly harsh and violates the objectives of the Texas Penal Code. Appellant cites section 1.02(1)(C) and (3) of the Texas Penal Code and argues that a sentence of imprisonment in is not necessary to prevent the recurrence of the offense alleged, does not meet the objective of rehabilitating Appellant or permit recognition of differences in rehabilitation possibilities among offenders. (Appellant s Br. at 16-17). Appellant s contention that the seven-year imprisonment sentence is overly harsh is refuted by the fact that the sentence in Cause No. F QM is well within the 14

18 two to twenty-year statutory range of punishment for the second degree felony of possession of one gram or more but less than four grams of cocaine with intent to deliver. See TEX. HEALTH & SAFETY CODE ANN (c) (Vernon Supp. 2009). Moreover, Appellant s allegation that the trial court failed to truly consider rehabilitation is refuted by the trial court s statement that Appellant would be placed in a drug treatment program as a condition of community supervision following his release from the penitentiary. (RR3: 52). The trial court thus implemented the rehabilitation objective of Section 1.02 of the Penal Code. See TEX. PEN. CODE ANN (Vernon 2003). Furthermore, Section 1.02 also recognizes the objective of deterrence, and in light of Appellant s extensive criminal record, it was reasonable to impose an imprisonment sentence. The trial court did not abuse its discretion. Appellant s fifth point of error should be overruled. PRAYER The State prays that this Honorable Court will affirm the judgments of the trial court except for reforming the two judgments discussed in the State s responses to points of error one and two. Respectfully submitted, Craig Watkins Joe C. Lockhart Criminal District Attorney Assistant District Attorney Dallas County, Texas State Bar No Frank Crowley Courts Building 133 N. Riverfront Blvd., LB-19 Dallas, Texas (214) (214) fax 15

19 CERTIFICATE OF SERVICE I hereby certify that a true copy of the foregoing brief was served on the Dallas County Public Defender s Office, 113 N. Riverfront Blvd., LB 2, Dallas, Texas by hand-delivery on November 11, Joe C. Lockhart 16

20 17

21 18 Assistant District Attorney