MODIFY, REFORM, and AFFIRM; and Opinion Filed December 5, 2013.




                                         S   In The
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                      No. 05-12-01625-CR

                           PETER JOHN ELLINGTON, Appellant
                                         V.
                             THE STATE OF TEXAS, Appellee

                      On Appeal from the 416th Judicial District Court
                                   Collin County, Texas
                           Trial Court Cause No. 416-82711-09

                               MEMORANDUM OPINION
                       Before Justices Francis, Lang-Miers, and Fillmore
                                  Opinion by Justice Fillmore

       Appellant Peter John Ellington waived a jury trial and entered an open guilty plea to

charges of aggravated sexual assault of a child and indecency with a child. The trial court found

appellant guilty of the offenses and assessed punishment of fifty-four years’ confinement for

aggravated sexual assault of a child and twenty years’ confinement for indecency with a child,

those sentences to run consecutively. In two issues, Ellington contends (1) the trial court abused

its discretion by imposing sentences of fifty-four years for aggravated sexual assault of a child

and twenty years for indecency with a child because both charges were based on the same

“factual incident/criminal episode,” and (2) the sentences totaling seventy-four years’

confinement violate the Eighth Amendment to the United States Constitution as they constitute

cruel and unusual punishment. We modify the judgment adjudicating guilt for aggravated sexual
assault of a child to indicate the correct statute for the offense, and, as modified, we affirm that

judgment. We affirm the judgment adjudicating guilt for indecency with a child. We issue this

memorandum opinion because the law to be applied in this case is well settled. See TEX. R. APP.

P. 47.4.

                                       Punishments Assessed

       Ellington pleaded guilty to aggravated sexual assault of a child—intentionally and

knowingly causing the penetration of the female sexual organ of L.G., a child younger than 14

years of age and not Ellington’s spouse, by means of Ellington’s finger—for which the trial court

assessed punishment of fifty-four years’ confinement, and to indecency with a child—

intentionally and knowingly, with the intent to arouse and gratify the sexual desire of any person,

engaging in sexual contact by touching part of the genitals of L.G., a child younger than

seventeen years of age and not Ellington’s spouse, by means of Ellington’s hand—for which the

trial court assessed punishment of twenty years’ confinement, those sentences to run

consecutively.

       In his first issue, Ellington asserts the trial court abused its discretion in sentencing him to

a combined total of seventy-four years’ confinement because the charges on which he was

convicted arose out of the same criminal episode and were prosecuted in a single criminal action.

In his second issue, Ellington contends the fifty-four-year sentence for the aggravated sexual

assault of a child conviction and the twenty-year sentence for the indecency with a child

conviction, totaling seventy-four years, constitute cruel and unusual punishment, in violation of

the Eighth Amendment to the United States Constitution.              See U.S. CONST. amend. VIII.

Ellington asserts the “sentence” imposed was grossly disproportionate to Ellington’s “crime.”

       The State responds Ellington did not preserve his complaints for appellate review, and,

alternatively, the trial court did not abuse its discretion in assessing the sentences.

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                                       Error Preservation

       To preserve error for appellate review, the record generally must show the appellant

made his complaint known to the trial court by a timely request, objection, or motion. See TEX.

R. APP. P. 33.1(a)(1). To preserve a complaint that the sentences were disproportionate to the

crimes committed, Ellington must have specifically objected on that basis at the time the

sentences were pronounced or in a post-trial motion. Bell v. State, 326 S.W.3d 716, 724 (Tex.

App.—Dallas 2010, pet. dism’d, untimely filed); Noland v. State, 264 S.W.3d 144, 151 (Tex.

App.—Houston [1st Dist] 2007, pet. ref’d) (“[I]n order to preserve for appellate review a

complaint that a sentence is grossly disproportionate, constituting cruel and unusual punishment,

a defendant must present to the trial court a timely request, objection, or motion stating the

specific grounds for the ruling desired.”); see also Castaneda v. State, 135 S.W.3d 719, 723

(Tex. App. —Dallas 2003, no pet.) (constitutional rights, including the right to be free from cruel

and unusual punishment, may be waived).

       Ellington did not complain the sentences were excessive or grossly disproportionate to

the crimes, either at the time they were imposed or in his motion for new trial. Accordingly,

Ellington has not preserved this complaint for appellate review. See Bell, 326 S.W. 3d at 724;

Castaneda, 135 S.W.3d at 723.

                                       Abuse of Discretion

       While Ellington argues in his appellate brief that “where charges arise from the same

criminal episode . . . the Texas Code of Criminal Procedure typically prevents the sentences from

running consecutively,” he acknowledges that “sentences may run consecutively where a

defendant is found/pleads guilty to certain crimes committed against a child younger than 17-

years of age.”




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       Ellington pleaded guilty to offenses for which the trial court may cumulate sentences.

See TEX. PENAL CODE ANN. § 3.03(b)(2)(A) (West Supp. 2013). Penal code section 3.03

provides:

       (a) When the accused is found guilty of more than one offense arising out of the
           same criminal episode prosecuted in a single criminal action, a sentence for
           each offense for which he has been found guilty shall be pronounced. Except
           as provided by Subsection (b), the sentences shall run concurrently.

       (b) If the accused is found guilty of more than one offense arising out of the same
           criminal episode, the sentences may run concurrently or consecutively if each
           sentence is for a conviction of:

                                                ***
       (2)   an offense:

       (A)      under Section 33.021 or an offense under Section 21.02, 21.11, 22.011,
       22.021, 25.02, or 43.25 committed against a victim younger than 17 years of age
       at the time of the commission of the offense regardless of whether the accused is
       convicted of violations of the same section more than once or is convicted of
       violations of more than one section; or

       (B) for which a plea agreement was reached in a case in which the accused was
       charged with more than one offense listed in Paragraph (A) committed against a
       victim younger than 17 years of age at the time of the commission of the offense
       regardless of whether the accused is charged with violations of the same section
       more than once or is charged with violation of more than one section.

TEX. PENAL CODE ANN. § 3.03.           See also TEX. PENAL CODE ANN. §§ 22.021(a)(1)(B)

(aggravated sexual assault) (West Supp. 2013), 21.11(a) (West 2011) (indecency with a child).

The decision to impose concurrent or cumulative sentences was within the discretion of the trial

court, and “so long as the law authorizes the imposition of cumulative sentences, a trial judge has

absolute discretion to stack sentences.” Nicholas v. State, 56 S.W.3d 760, 764, 765 (Tex. App.—

Houston [14th Dist.] 2001, pet. ref’d) (abuse of discretion generally will be found only if trial

court imposes consecutive sentences where the law requires concurrent sentences, imposes

concurrent sentences but the law requires consecutive ones, or otherwise fails to observe

statutory requirements pertaining to sentencing); see also Hurley v. State, 130 S.W.3d 501, 504

                                               –4–
(Tex. App.—Dallas 2004, no pet.) (“If the convictions arise out of the ‘same criminal episode’

and the cases are tried together, the sentences must run concurrently unless the convictions are

for certain specified offenses, including sex crimes against children, and the trial court exercises

its discretion to cumulate or stack the sentences.”). Accordingly, the trial court did not abuse its

discretion in ordering Ellington’s sentences to run consecutively.

       The trial court imposed punishment within the statutory range for each of the offenses to

which Ellington pleaded guilty. See TEX. PENAL CODE ANN. §§ 12.32 (West 2011) (individual

adjudged guilty of first degree felony shall be punished by imprisonment for life or for any term

of not more than ninety-nine years or less than five years); 12.33 (West 2011) (individual

adjudged guilty of second degree felony shall be punished by imprisonment for not more than

twenty years or less than two years). As a general rule, punishment that is assessed within the

statutory range for an offense is neither excessive nor unconstitutionally cruel or unusual. Kirk

v. State, 949 S.W.2d 769, 772 (Tex. App.—Dallas 1997, pet. ref’d); see also Jackson v. State,

680 S.W.2d 809, 814 (Tex. Crim. App. 1984) (general rule is that as long as sentence is within

proper range of punishment, it will not be disturbed on appeal). “Subject only to a very limited,

‘exceedingly rare,’ and somewhat amorphous Eighth Amendment gross-disproportionality

review, a punishment that falls within the legislatively prescribed range, and that is based upon

the sentencer’s informed normative judgment, is unassailable on appeal.” Kim v. State, 283

S.W.3d 473, 475–476 (Tex. App.—Fort Worth 2009, pet. ref’d) (quoting Ex parte Chavez, 213

S.W.3d 320, 323–24 (Tex. Crim. App. 2006)). The punishment assessed by the trial court was

not excessive, grossly disproportionate to his crimes, or unconstitutionally cruel or unusual.

                                            Conclusion

       We resolve Ellington’s first and second issues against him.




                                                –5–
                                   Modification of Judgment

       The trial court signed a judgment relating to Count I of the indictment—aggravated

sexual assault of a child—and a judgment relating to Count II of the indictment—indecency with

a child. We note the judgment adjudicating guilt for aggravated sexual assault of a child lists the

statute for this offense as section 22.02(a)(1)(B) of the Texas Penal Code, pertaining to

aggravated assault. See TEX. PENAL CODE ANN. § 22.02 (West 2011). The correct statute for

the offense of aggravated sexual assault of a child is section 22.021 of the Texas Penal Code.

See TEX. PENAL CODE ANN. § 22.021 (West Supp. 2013). We may modify a trial court’s written

judgment to correct a clerical error when we have the necessary information before us to do so.

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). Accordingly, we hereby

modify the judgment adjudicating guilt for aggravated sexual assault of a child to indicate the

correct statute for the offense is Section 22.021(a)(1)(B). See TEX. PENAL CODE ANN.

§ 22.021(a)(1)(B).

                                           Conclusion

       We modify the judgment adjudicating guilt for aggravated sexual assault of a child to

indicate the correct statute for the offense, and, as modified, we affirm the judgment. We affirm

the judgment adjudicating guilt for indecency with a child.



                                                     /Robert M. Fillmore/
                                                     ROBERT M. FILLMORE
                                                     JUSTICE

Do Not Publish
TEX. R. APP. P. 47

121625F.U05



                                               –6–
                                         S
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                       JUDGMENT

PETER JOHN ELLINGTON, Appellant                      On Appeal from the 416th Judicial District
                                                     Court, Collin County, Texas.
No. 05-12-01625-CR         V.                        Trial Court Cause No. 416-82711-09.
                                                     Opinion delivered by Justice Fillmore,
THE STATE OF TEXAS, Appellee                         Justices Francis and Lang-Miers
                                                     participating.

       Based on the Court’s opinion of this date, the judgment adjudicating guilt for aggravated
sexual assault of a child is MODIFIED as follows:

       The statute for the offense of aggravated sexual assault of a child is modified to
       reference Texas Penal Code section 22.021(a)(1)(B).

As REFORMED, the judgment adjudicating guilt for aggravated sexual assault of a child is
AFFIRMED.

The judgment adjudicating guilt for indecency with a child is AFFIRMED.


Judgment entered this 5th day of December, 2013.




                                                     /Robert M. Fillmore/
                                                     ROBERT M. FILLMORE
                                                     JUSTICE




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