MODIFY and AFFIRM; and Opinion Filed May 29, 2013.




                                        S  In The
                                     Court of Appeals
                              Fifth District of Texas at Dallas

                                    Nos. 05-11-01542-CR,
                              05-11-01568-CR, 05-11-01569-CR,
                                      05-11-01567-CR

                            DARIUS JAMAL RUSTIN, Appellant
                                         V.
                             THE STATE OF TEXAS, Appellee

                   On Appeal from the 283rd Judicial District Court
                                 Dallas County, Texas
    Trial Court Cause Nos. F10-16642-T, F10-16643-T, F10-16644-T, and F10-45648-T

                               MEMORANDUM OPINION
                       Before Justices Lang-Miers, Murphy, and Fillmore
                                   Opinion by Justice Murphy
       Darius Jamal Rustin pleaded guilty to four counts of aggravated robbery, and the trial

court assessed a twenty-five-year prison sentence in each case. See TEX. PENAL CODE ANN. §

29.03 (West 2011). In three points of error, Rustin contends the trial court improperly overruled

his “objection to testimony which speculated about [his] state of mind,” his punishment violated

the objectives of the penal code, and the judgments in all four counts should be modified to

reflect the section of the penal code he violated. We reform the judgments as requested and

affirm as modified.

                                       BACKGROUND

       Rustin’s four counts of aggravated robbery stem from two separate incidents. In the first

incident, Rustin and his three friends robbed Mariscos 2000, a Mexican restaurant. On the
evening of the robbery, Roddie Rodriguez was working as a waitress. At approximately 7:30

p.m., Rodriguez noticed four individuals enter the restaurant wearing masks and costumes. It

was close to Halloween, so Rodriguez thought they wanted candy. Only two customers were in

the restaurant at the time, and Rodriguez was sitting at a table. The tallest of the four came over

to Rodriguez, hit her on the head with a gun, and demanded money. Although Rodriguez could

not identify that man as Rustin because of the masks, a detective that investigated the incident

identified Rustin as the tallest of the four suspects.

        Rodriguez opened the cash register and gave the robber everything in the drawer, but he

demanded more money. He then told Rodriguez to open the office door, and he grabbed her by

the blouse and threw her against the wall. Rodriguez thought the robber intended to take her into

the office and rape her. She begged him to leave her alone and not to harm her. He stopped

when instructed to do so by one of his friends.

        At some point during the robbery, one of the customers tried to call the police, but one of

the robbers took her cell phone. He then took both customers’ purses and cell phones, hit them,

knocked them to the floor, and forced them to stay on the floor until the four had left.

        Rustin was arrested for the robbery a few hours later.

        The second incident occurred approximately six months later, while Rustin was out of jail

on a personal recognizance bond. Diego Cruz and Jose Maldonado were “hanging out” with four

other friends in the parking lot of an apartment complex when Rustin and two other individuals

approached with guns and told them to “give them everything.” Rustin grabbed Maldonado and

put a gun to his head.       He asked for Maldonado’s wallet, cell phone, and money, which

Maldonado turned over. Maldonado and Cruz’s friends ran, and Cruz began walking to his

sister’s apartment. Rustin approached Cruz and told him to take out his wallet. Cruz refused,




                                                  –2–
telling him, “No, I’m not going to give you anything. Kill me then.” Cruz walked away, but

Rustin hit him with a gun. Cruz managed to escape into his sister’s apartment.

       When Maldonado saw Rustin hit Cruz with the gun, he grabbed Rustin, pulled him to the

ground, and struggled with him. During the struggle, Rustin fired two shots about three inches

from Maldonado’s head. Maldonado was not hit by the gunfire, but his finger was broken in the

fight. Rustin yelled for his friends to help him; they fired their guns but were already some

distance away. Maldonado managed to get away and ran to his aunt’s apartment. Rustin and his

two friends also ran, but security guards and police apprehended them.

       Rustin was indicted on four counts of aggravated robbery—three related to the robbery of

Mariscos 2000 and one related to the incident at the apartment complex. He pleaded guilty, and

the trial court sentenced him to twenty-five years’ confinement in each case.

                                         DISCUSSION

                           Point of Error One: Objection to Testimony

       Rustin argues in his first point of error that the trial court improperly overruled his

objection to portions of Rodriguez’s testimony. Rodriguez testified that during the robbery of

Mariscos 2000, one of the suspects grabbed her by her blouse and “hit” her against the wall. The

following exchange occurred:

               Q Okay. And when this guy was grabbing your clothing, what did you
       think that he was trying to do?

             A I thought his intentions were to take me into the office because he tore
       my – my hose were torn.

               Q Okay. Your hose that – You had hose on your legs?

               A Yes.

                Q Okay. And what did you think that his intention was if he got you back
       in that room?



                                               –3–
                      [DEFENSE COUNSEL]: Judge, I’m going to object. That calls
       for speculation.

                       THE COURT: Overruled.

              A His intentions were to rape me because he opened up my blouse, he
       raised my mini-skirt, and he tore my pantyhose.

               In Spanish I begged him to leave me alone, to not harm me, and a friend of
       his told him to stop, to not do anything to me.

       Rustin complains on appeal that Rodriguez could have no personal knowledge of his

actual intentions; her testimony was thus speculative. Rustin did not object to the first question

of “what did you think that he was trying to do?” or the answer. After another question and

answer, Rustin objected to the question asking what Rodriguez thought Rustin’s intentions were

if he got her “back in that room,” which the trial court overruled. There were no further

objections—he did not complain about or move to strike Rodriguez’s answer that “[Rustin’s]

intentions were to rape me . . . .” Thus, to the extent Rodriguez testified to Rustin’s “actual”

intentions, as opposed to what she thought his intentions were, objection to the testimony is

waived. See TEX. R. APP. P. 33.1(a)(1); TEX. R. EVID. 103(a)(1).

       Regarding Rustin’s objection to the question of what Rodriguez thought Rustin intended

to do, the question did not call for speculation about her thoughts. Stated differently, she was not

speculating about her own thoughts. Rustin also admits Rodriguez had personal knowledge

about the events that caused her to think she was going to be raped. Rodriguez’s thoughts were

relevant during the punishment phase of the trial as evidence of psychological damage to a

victim that Rustin could have anticipated and that have a bearing on Rustin’s personal

responsibility and moral guilt. See Stavinoha v. State, 808 S.W.2d 76, 79 (Tex. Crim. App.

1991) (testimony regarding psychological trauma caused by aggravated sexual assault admissible

during punishment phase of trial); see also TEX. CODE CRIM. PROC. ANN. art. 37.07(3)(a)(1)

(West Supp. 2012) (noting the State and the defendant may offer evidence “as to any matter the
                                                –4–
court deems relevant to sentencing, including . . . the circumstances of the offense for which [the

defendant] is being tried”); Hayden v. State, 296 S.W.3d 549, 552 (Tex. Crim. App. 2009)

(noting evidence is relevant if it helps fact finder decide appropriate sentence given facts of

case); Kos v. State, 15 S.W.3d 633, 641 (Tex. App.—Dallas 2000, pet. ref’d) (noting accused’s

“personal responsibility” and “moral culpability” for the crime charged is relevant to

sentencing). We conclude the trial court did not abuse its discretion in overruling Rustin’s

objection to the State’s question. Rustin’s first point of error is overruled.

                             Point of Error Two: Terms of the Sentence

         Rustin asserts in his second point of error that his sentences violate the objectives of the

system of prohibitions, penalties, and correctional measures in the penal code. The trial court

sentenced Rustin to twenty-five years’ confinement for each charge of aggravated robbery. He

concedes his sentences are within the statutorily authorized range for these crimes but argues he

was a good candidate for probation; he states that, with proper help, he would have been

successful on probation. See TEX. PENAL CODE ANN. § 1.02(1)(B) (stating objectives of penal

code).    He contends his sentences do not meet the objective of rehabilitating him, do not

recognize the difference in rehabilitative possibilities among offenders, are punitive, and an

abuse of the trial court’s discretion. The State responds that Rustin failed to preserve this

complaint for appellate review; alternatively, the trial court neither abused its discretion nor

violated the objectives of the penal code.

         Rustin did not complain about his sentences at the time of pronouncement. He relies on

his motions for new trial, in which he asserted the verdicts were contrary to the law and to the

evidence. He asserts that because of his guilty pleas, the only issue for the trial court was the

appropriate punishment and his motions were adequate to preserve his complaint.




                                                 –5–
        Rustin was required to make a timely request, objection, or motion to preserve his

complaint for appeal. See TEX. R. APP. P. 33.1(a)(1). A motion for new trial in which the

movant complains a verdict is contrary to both the law and the evidence does not preserve a

complaint the trial court abused its discretion by sentencing a defendant in violation of the

objectives of the penal code. See Rivas v. State, No. 05-11-00390-CR, 2012 WL 677515, at *1

(Tex. App.—Dallas Mar. 2, 2012, no pet.) (mem. op., not designated for publication).

Accordingly, we reject Rustin’s reliance on his motions for new trial to meet his preservation

requirements. See TEX. R. APP. P. 33.1.

        Rustin makes three additional arguments regarding preservation.         First, he states a

specific objection is not required when the basis of the objection is apparent from the context.

See id. (objection required unless the specific ground apparent from the context). Rustin cites

Montgomery v. State, 99 S.W.3d 257 (Tex. App.—Fort Worth 2003, pet. struck); Edwards v.

State, 21 S.W.3d 625 (Tex. App.—Waco 2000, no pet.); and Garza v. State, 841 S.W.2d 19

(Tex. App.—Dallas 1992, no pet.). The cases do not support Rustin’s proposition. See Garza v.

State, No. 05-11-01626-CR, 2013 WL 1683612, at *2 (Tex. App.—Dallas Apr. 18, 2013, no.

pet. h.) (mem. op., not designated for publication) (“[Montgomery, Edwards, and Garza] do not

explain how a complaint that punishment was excessive, especially punishment within the

statutory range for the offense, would be apparent from the context of the case and not require an

objection at trial.”).

        Rustin next asserts that “fundamental error in punishment” can be raised for the first time

on appeal, citing Hernandez v. State, 268 S.W.3d 176 (Tex. App.—Corpus Christi 2008, no pet.),

and Jaenicke v. State, 109 S.W.3d 793 (Tex. App.—Houston [1st Dist.] 2003, pet. ref’d). But

those cases involved allegations of trial court bias. Rustin does not suggest the trial court was




                                               –6–
biased against him. Hernandez and Jaenicke are thus distinguishable. See Garza, 2013 WL

1683612, at *2.

        Finally, Rustin states that a specific objection would have served no useful purpose in

this case. Yet, “[t]he purpose of requiring [an] objection is to give to the trial court or the

opposing party the opportunity to correct the error or remove the basis for the objection.” Reyna

v. State, 168 S.W.3d 173, 179 (Tex. Crim. App. 2005) (quoting Martinez v. State, 22 S.W.3d

504, 507 (Tex. Crim. App. 2000)). By raising the issue at trial, Rustin’s objection would have

provided the trial court with the opportunity to correct any error when it was in the position to do

so. We conclude Rustin has failed to preserve his second point of error.

                         Point of Error Three: Modification of Judgment

        In his final point of error, Rustin contends, and the State agrees, the judgments in all four

cases should be modified to reflect the correct section of the penal code he violated.

Specifically, the record shows Rustin was charged with and convicted of aggravated robbery,

which is proscribed in section 29.03 of the penal code. See TEX. PENAL CODE ANN. § 29.03

(aggravated robbery). The judgments, however, reflect that he violated section 29.02 of the

penal code. See id. § 29.02. (robbery).

        This Court has the power to correct and reform the judgment of the trial court for

accuracy when the necessary data and information are part of the record. Asberry v. State, 813

S.W.2d 526, 529 (Tex. App.—Dallas 1991, pet. ref’d); see also TEX. R. APP. P. 43.2(b) (court of

appeals may modify trial court’s judgment and affirm as modified); Bigley v. State, 865 S.W.2d

26, 27 (Tex. Crim. App. 1993) (appeal court’s authority to reform judgment not limited to

clerical errors).

        The indictments in all four cases charged Rustin with aggravated robbery, and he pleaded

guilty to those offenses. The trial court’s judgments incorrectly list the statute for the offenses as

                                                 –7–
section 29.02. We reform the judgments in all four cases to reflect Rustin was convicted under

penal code section 29.03 and affirm the judgments as modified.




                                                   /Mary Murphy/
                                                   MARY MURPHY
                                                   JUSTICE

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

111542F.U05




                                             –8–
                                        S
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                      JUDGMENT

DARIUS JAMAL RUSTIN, Appellant                       On Appeal from the 283rd Judicial District
                                                     Court, Dallas County, Texas
No. 05-11-01542-CR         V.                        Trial Court Cause No. F10-16642-T.
                                                     Opinion delivered by Justice Murphy.
THE STATE OF TEXAS, Appellee                         Justices Lang-Miers and Fillmore
                                                     participating.

        Based on the Court’s opinion of this date, the judgment of the trial court is MODIFIED
as follows:

       We MODIFY the “Statute for Offense” to show “29.03 Penal Code.”

As MODIFIED, the judgment is AFFIRMED.


Judgment entered this 29th day of May, 2013.




                                                     /Mary Murphy/
                                                     MARY MURPHY
                                                     JUSTICE




                                               –9–
                                        S
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                      JUDGMENT

DARIUS JAMAL RUSTIN, Appellant                        On Appeal from the 283rd Judicial District
                                                      Court, Dallas County, Texas
No. 05-11-01567-CR         V.                         Trial Court Cause No. F10-45648-T.
                                                      Opinion delivered by Justice Murphy.
THE STATE OF TEXAS, Appellee                          Justices Lang-Miers and Fillmore
                                                      participating.

        Based on the Court’s opinion of this date, the judgment of the trial court is MODIFIED
as follows:

       We MODIFY the “Statute for Offense” to show “29.03 Penal Code.”

As MODIFIED, the judgment is AFFIRMED.


Judgment entered this 29th day of May, 2013.




                                                  /Mary Murphy/
                                                  MARY MURPHY
                                                  JUSTICE




                                               –10–
                                        S
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                      JUDGMENT

DARIUS JAMAL RUSTIN, Appellant                        On Appeal from the 283rd Judicial District
                                                      Court, Dallas County, Texas
No. 05-11-01568-CR         V.                         Trial Court Cause No. F10-16643-T.
                                                      Opinion delivered by Justice Murphy.
THE STATE OF TEXAS, Appellee                          Justices Lang-Miers and Fillmore
                                                      participating.

        Based on the Court’s opinion of this date, the judgment of the trial court is MODIFIED
as follows:

       We MODIFY the “Statute for Offense” to show “29.03 Penal Code.”

As MODIFIED, the judgment is AFFIRMED.


Judgment entered this 29th day of May, 2013.




                                                  /Mary Murphy/
                                                  MARY MURPHY
                                                  JUSTICE




                                               –11–
                                        S
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                      JUDGMENT

DARIUS JAMAL RUSTIN, Appellant                        On Appeal from the 283rd Judicial District
                                                      Court, Dallas County, Texas
No. 05-11-01569-CR         V.                         Trial Court Cause No. F10-16644-T.
                                                      Opinion delivered by Justice Murphy.
THE STATE OF TEXAS, Appellee                          Justices Lang-Miers and Fillmore
                                                      participating.

        Based on the Court’s opinion of this date, the judgment of the trial court is MODIFIED
as follows:

       We MODIFY the “Statute for Offense” to show “29.03 Penal Code.”

As MODIFIED, the judgment is AFFIRMED.


Judgment entered this 29th day of May, 2013.




                                                  /Mary Murphy/
                                                  MARY MURPHY
                                                  JUSTICE




                                               –12–
