                                        In The
                                   Court of Appeals
                          Seventh District of Texas at Amarillo

                                         No. 07-13-00138-CR1


                                   ROBERT BARA, APPELLANT

                                                   V.

                               THE STATE OF TEXAS, APPELLEE

                              On Appeal from the 396th District Court
                                       Tarrant County, Texas
                Trial Court No. 1286626D, Honorable George W. Gallagher, Presiding

                                            July 17, 2015

                                 MEMORANDUM OPINION
                       Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.


        Appellant, Robert Bara, was indicted for the offense of delivery of a controlled

substance, methamphetamine, in the amount of one gram or more but less than four

grams.2 The indictment further alleged appellant had previously been convicted of two




        1
          Pursuant to the Texas Supreme Court’s docket equalization efforts, this case was transferred to
this Court from the Second Court of Appeals. See TEX. GOV’T CODE ANN. § 73.001 (West 2013).
        2
            See TEX. HEALTH & SAFETY CODE ANN. § 481.112(c) (West 2010).
felony offenses.3        The State subsequently abandoned one of the enhancement

paragraphs, and appellant entered a plea of guilty to the primary offense and a plea of

“True” to the remaining enhancement paragraph. Thereafter, the trial court sentenced

appellant to serve eight years in the Institutional Division of the Texas Department of

Criminal Justice (ID-TDCJ). Appellant now appeals his sentence. We will affirm.


                               Factual and Procedural Background


       Appellant does not contest the sufficiency of the evidence to support the trial

court’s judgment; therefore, we will only discuss so much of the factual background as

necessary to decide the issue before the Court.


       According to the record before the Court, on December 3, 2012, appellant

entered a plea of guilty to the offense of delivery of a controlled substance,

methamphetamine, in an amount of more than one gram but less than four grams. At

that time, the State waived the habitual offender allegation of the indictment. Appellant

pleaded “True” to the prior felony conviction of driving while intoxicated, third offense.

The trial court accepted appellant’s plea at that time and set the matter for sentencing at

a future date.


       On March 26, 2013, the trial court conducted a hearing on the issue of

punishment. After hearing the evidence, the trial court made the following

pronouncement of sentence: “So upon your plea of guilty, I’ll find you guilty, sentence

you to eight years confinement in the Texas penitentiary.” Thereafter, the trial court




       3
           See TEX. PENAL CODE ANN. § 12.42(d) (West Supp. 2014).

                                                  2
entered a written judgment finding appellant guilty of the offense charged and that the

enhancement allegation was “True.”


         Appellant now contends that the oral pronouncement of sentence did not contain

a finding of “True” to the enhancement paragraph of the indictment.                         According to

appellant, this means that the trial court erred in entering a written judgment that was

different from the orally pronounced sentence. We will affirm for the reasons stated

below.


                                                Analysis


         When there is a conflict between the oral pronouncement of sentence and the

sentence in the written judgment, the oral pronouncement controls. Taylor v. State, 131

S.W.3d 497, 500 (Tex. Crim. App. 2004).4 Therefore, under the record before us, the

failure of the trial court to pronounce that he found the allegations in the one

enhancement paragraph “True” results in the appellant’s sentence being limited to the

finding of guilt on the primary offense. See id.


         However, this does not provide any relief for appellant. This is because appellant

wholly failed to object by a motion for new trial after the entry of the written judgment. It

is fundamental law in Texas that to preserve an issue for appeal, a party must (1)

object, (2) state the grounds with sufficient specificity, and (3) obtain an adverse ruling.

TEX. R. APP. P. 33.1; see Wilson v. State, 71 S.W.3d 346, 349 (Tex. Crim. App. 2002).

Additionally, the objection must be made at the earliest possible opportunity.                         See

Wilson, 71 S.W.3d at 349. Here, the record is unclear on whether appellant saw the

         4
           For purposes of our opinion, we are assuming, without deciding, that the trial court was required
to orally pronounce its finding of “True” at the time it pronounced sentence.

                                                     3
written judgment on the day sentence was orally pronounced. The record is clear,

however, that appellant never filed a motion for new trial in any effort to bring the

alleged error to the attention of the trial court.


       There is an exception to the contemporaneous objection rule if the sentence is

illegal. See Mizell v. State, 119 S.W.3d 804, 806 n.6 (Tex. Crim. App. 2003). This

exception is not applicable to the case before the Court. Appellant’s primary offense is

a second degree felony. See TEX. HEALTH & SAFETY CODE ANN. § 481.112(c). A second

degree felony offense is punishable by confinement in the ID-TDCJ for a term of not

more than 20 years or less than two years. TEX. PENAL CODE ANN. § 12.33(a) (West

2011). Appellant’s sentence, eight years confinement in the ID-TDCJ, is within the

applicable punishment range. It is therefore not an illegal sentence.


       Accordingly, appellant has not preserved any issue for appellate review. See

Kim v. State, 283 S.W.3d 473, 475 (Tex. App.—Fort Worth 2009, pet. ref’d). Appellant’s

issue is overruled.


                                          Conclusion


       Having overruled appellant’s single issue, the trial court’s judgment is affirmed.




                                                     Mackey K. Hancock
                                                         Justice


Do not publish.

Pirtle, J., concurring in result.


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