Affirmed as Modified; Opinion Filed August 18, 2014.




                                         S   In The
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                       No. 05-13-00101-CR

                           QUIDALE D. DICKERSON, Appellant
                                         V.
                            THE STATE OF TEXAS, Appellee

                     On Appeal from the Criminal District Court No. 5
                                  Dallas County, Texas
                          Trial Court Cause No. F-1061899-L

                            MEMORANDUM OPINION
                            Before Justices Lang, Myers, and Brown
                                    Opinion by Justice Lang
       Quidale Dickerson was charged by indictment with the offense of aggravated assault with

a deadly weapon to which he pled guilty. The trial court deferred adjudication and sentenced

Dickerson to six years’ community supervision. Before this six year period elapsed, Dickerson

pled true to violating several of the conditions of his community supervision. The trial court

adjudicated Dickerson’s guilt and sentenced him to ten years’ confinement to be served

consecutively with the sentences he received for aggravated assault on a public servant (the

“public servant cases”).   In two issues on appeal, Dickerson argues the imposition of the

consecutive sentences is unconstitutionally disproportionate under the Eight Amendment of the

United States Constitution and under Article I, Section 13 of the Texas Constitution. We decide

against Dickerson on his two issues.
       In addition to the issues raised by Dickerson, the State contends the judgment states in

error that Dickerson’s sentences are to run concurrently. We agree the judgment is in error and

the record reflects the sentences are to run consecutively. Accordingly, we modify the judgment

to reflect that Dickerson’s sentences run consecutively. As modified, the trial court’s judgment

is affirmed.

                    I. FACTUAL AND PROCEDURAL BACKGROUND

       On January 12, 2011, Dickerson pled guilty to the offense of aggravated assault with a

deadly weapon. The trial court deferred adjudication of guilt and sentenced Dickerson to six

years of community supervision.

       On July 6, 2012, alleging a number of community supervision violations, the State filed a

motion to revoke Dickerson’s community supervision and to proceed with an adjudication of

guilt in that case. Later, on December 10, 2012, the State filed a motion to cumulate Dickerson’s

sentences with “other case(s)” he had before the trial court, specifically, the public servant cases

for which the jury had found Dickerson guilty on November 30, 2012.

       On January 18, 2013, at the hearing on the State’s motion to proceed with an adjudication

of guilt, Dickerson pled true to violating a number of the conditions of his community

supervision. The trial court accepted Dickerson’s plea and found him guilty.

       Both Dickerson and the State presented evidence as to punishment. The State relied on

the testimony of six officers from the Dallas County Sheriff’s Office and the Dallas Police

Department to establish certain aggravating facts.      For instance, Officer Robbie Robertson

testified, following his trial in the public servant cases, Dickerson became “very agitated” while




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in his holdover cell. Officer Robertson stated that, while he was talking on the phone, he heard a

crash in Dickerson’s cell and observed the overhead light had been shattered. 1

           In addition to this incident, three jail guards testified to three distinct instances of

Dickerson masturbating in public, while facing a female guard or nurse. Officer James Boyd

testified Dickerson had a “long history” of openly gratifying himself while in jail. Officer Boyd

also testified regarding an incident in which Dickerson was removed from a “tank” with other

inmates because a fight was about to break out between them due to racial tensions.

           On another occasion, Officer Monica Bratton testified she conducted a search of

Dickerson’s cell in response to the complaints of several inmates who reported missing items

they had purchased from the commissary. As a result of this, Officer Bratton discovered that,

although Dickerson had not purchased any commissary items in two weeks, Dickerson had

possession of commissary items that matched the items that other inmates had complained were

stolen.

           Finally, Officer Craig Redden of the Dallas Police Department Gang Unit testified that

Dickerson had two tattoos on his forearm that read “Butter Beans.” Officer Redden explained

that Butter Beans is “a sect off [sic] the Blood gang.” He further testified he had reason to

believe Dickerson was still involved with the Blood gang from a hand-drawn hand sign

displayed on Dickerson’s Facebook page, which appeared to show the “hand sign for the

Bloods.”

           Dickerson called his mother to testify in his defense. He also testified in his own defense,

stating he had learned his lesson from being in jail and requested the court not run his sentences

consecutively. He admitted he did not know how many times he was cited for masturbating in



   1
       At the hearing, Dickerson admitted to breaking this light.



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front of female jail employees and testified he did not know how many times he had been moved

for “breaking up a click [sic].”

       Following the presentation of evidence, the trial court sentenced Dickerson to ten years’

confinement to run consecutively with the sentences he received in the public servant cases.

                     II. ERROR IN DENYING MOTION TO SUPPRESS

A. Standard of Review

       “[A] trial judge has discretion to cumulate a defendant’s sentence for two or more

convictions.” Revels v. State, 334 S.W.3d 46, 53 (Tex. App.—Dallas 2008, no pet.) (citing TEX.

CODE CRIM. PROC. ANN. art. 42.08 (Vernon 2006)). “If community supervision is revoked and a

sentence is imposed after the defendant’s conviction and sentencing for a new offense, then the

court has the discretion to treat the revocation as a subsequent conviction for the purpose of

stacking sentences.” Edwards v. State, 106 S.W.3d 833, 845 (Tex. App.—Dallas 2003, pet.

ref’d) (citing Pettigrew v. State, 48 S.W.3d 769, 771 (Tex. Crim. App. 2011)).

       An abuse of discretion occurs when a trial court “applies an erroneous legal standard or

when no reasonable view of the record supports the trial court’s conclusion under the correct law

and facts viewed in the light most favorable to its legal conclusion.” Revels, 334 S.W.3d at 53.

Additionally,

       as a practical matter, an abuse of discretion in the context of cumulation of a defendant's

       sentences will be found only if the trial court imposes consecutive sentences where the

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

       law requires consecutive ones, or where the court otherwise fails to observe the statutory

       requirements pertaining to sentencing.




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Id. at 54 (citing Nicholas v. State, 56 S.W.3d 760, 764 (Tex. App.—Houston [14th Dist.] 2001,

pet. ref’d)). That is, “so long as the law authorizes the imposition of cumulative sentences, a trial

judge has absolute discretion to stack sentences.” Id.

B. Applicable Law

          A person commits the offense of aggravated assault if he commits an assault and either

(1) causes serious bodily injury to another or (2) uses or exhibits a deadly weapon during the

commission of the assault. TEX. PENAL CODE ANN. § 22.02(a). Such an offense is a felony of

the second degree. TEX. PENAL CODE ANN. § 22.02(b). A second degree felony is punishable by

confinement of between two and twenty years. TEX. PENAL CODE ANN. § 12.33(a).

C. Application of the Law to the Facts

          Dickerson contends the sentence imposed in this case violates his rights under the

Constitutions of both Texas and the United States, arguing his sentence is “grossly

disproportionate to the crime and inappropriate to the offender.” He asserts, inter alia, that

because “the State offered no witnesses to contradict [Dickerson’s] situation” and because the

court imposed Dickerson’s sentence after Dickerson “demonstrated the cause of his [community

supervision violations] was not related to any violent tendencies,” his sentence was “grossly

disproportionate to the crime charged” and to his “personal circumstances.” 2

          The State’s responds, first, by arguing Dickerson failed to preserve this argument for

appellate review. Second, the State contends the trial court based Dickerson’s sentence on

“ample evidence” and thus, did not abuse its discretion. Third, the State asserts Dickerson has

provided no evidence to compare his sentence with other sentences. We agree with the State on

all points.


     2
      These “personal circumstances” are not clarified in the argument or fact sections of Dickerson’s brief. In his brief, Dickerson asserts,
“Based on the evidence presented it is clear [Dickerson] has a serious drug addiction,” but this statement is not supported by the record.



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       The record reflects Dickerson did not object to his sentence at trial, nor did he file any

post-trial motions.   Because he failed to bring this argument to the trial court’s attention,

Dickerson may not raise this argument for the first time on appeal. See TEX. R. APP. P. 33.1(a);

see also Keeter v. State, 175 S.W.3d 756, 760 (Tex. Crim. App. 2005) (“All a party has to do to

avoid the forfeiture of a complaint on appeal is to let the trial judge know what he wants, why he

thinks himself entitled to it, and to do so clearly enough for the judge to understand him at a time

when the trial court is in a proper position to do something about it.”). Even “[c]onstitutional

rights, including the right to be free from cruel and unusual punishment, may be waived.” See

Castaneda v. State, 135 S.W.3d 719, 723 (Tex. App.—Dallas 2003, no pet.). Accordingly,

Dickerson has not preserved this issue for our review.

       Even assuming Dickerson had preserved his issue for appeal, we conclude the trial court

did not abuse its discretion. The trial court imposed a sentence that was within the two to twenty

year statutory range provided for aggravated assault. See TEX. PENAL CODE ANN. § 12.33(a).

Both as to the length of Dickerson’s sentence, as well as to the decision to cumulate the

sentences, the trial court had broad discretion. See Revels, 334 S.W.3d at 53-54

       On this record, we cannot conclude the trial court abused its discretion in ordering

Dickerson’s sentence in this case to run consecutively to the sentences imposed in the public

servant cases. See id. We decide against Dickerson on his sole issue.

       III. MODIFYING THE JUDGMENT TO REFLECT SENTENCES TO RUN

                                      CONSECUTIVELY

       The State also raises the issue that the judgment should be modified to reflect that

Dickerson’s sentence in this case runs concurrently with the sentences in the public servant

cases. In the oral pronouncement of punishment, the trial court ruled Dickerson’s sentences were




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to run consecutively. However, the written judgment states Dickerson’s sentences are to run

concurrently.

       This Court has the power to modify an incorrect judgment to make the record speak the

truth where we have the necessary information to do so. See TEX. R. APP. P. 43.2(b); Bigley v.

State, 865 S.W.2d 26, 27-28 (Tex. Crim. App. 1993) (en banc); Asberry v. State, 813 S.W.2d

526, 529-30 (Tex. App.—Dallas 1991, pet. ref’d). Accordingly, we modify the judgment to

reflect that Dickerson’s sentences are to run concurrently.

                                       IV. CONCLUSION

       We modify the judgment to reflect that Dickerson’s sentences are to run consecutively

and affirm the judgment as modified.




                                                     /Douglas S. Lang/
                                                     DOUGLAS S. LANG
                                                     JUSTICE

Do Not Publish
TEX. R. APP. P. 47.2(b)

130101F.U05




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                                         S
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                       JUDGMENT

QUIDALE D. DICKERSON, Appellant                      On Appeal from the Criminal District Court
                                                     No. 5, Dallas County, Texas
No. 05-13-00101-CR         V.                        Trial Court Cause No. F-1061899-L.
                                                     Opinion delivered by Justice Lang. Justices
THE STATE OF TEXAS, Appellee                         Myers and Brown participating.

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

       to reflect that Dickerson’s sentences are to run consecutively.

As MODIFIED, the judgment is AFFIRMED.


Judgment entered this 18th day of August, 2014.




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