                                  COURT OF APPEALS
                               EIGHTH DISTRICT OF TEXAS
                                    EL PASO, TEXAS


 LLOYD CHARLES LANGSTON,                       §
                                                              No. 08-12-00159-CR
                         Appellant,            §
                                                                 Appeal from the
 v.                                            §
                                                               371st District Court
 THE STATE OF TEXAS,                           §
                                                            of Tarrant County, Texas
                         Appellee.             §
                                                                (TC# 1249948D)
                                                §


                                        OPINION

       Appellant Lloyd Charles Langston pleaded guilty to one count of unlawfully carrying a

weapon on a premises licensed or issued a permit by the state of Texas for the sale of alcoholic

beverages.   TEX. PENAL CODE ANN. § 46.02(a),(c) (West 2011).         The trial court assessed

punishment at five years’ confinement in the Institutional Division of the Texas Department of

Criminal Justice.   We modify the judgment to reflect the applicable section of the Texas Penal

Code as TEX. PENAL CODE ANN. § 46.02(a),(c) (West 2011).      We affirm as modified.

                                       BACKGROUND

       Appellant’s conviction stems from his arrest at the BlackFinn American Saloon in
Arlington, Texas.1        The BlackFinn is a restaurant, bar and nightclub that regularly serves

alcohol. Franklin Shafer, an off-duty officer working security at the BlackFinn on the early

hours of May 21, 2011, responded to reports of Appellant’s aggressive behavior towards other

patrons.    Officer Shafer encountered Appellant and observed Appellant exhibiting multiple

signs of intoxication such as stumbling, slurred speech, smell of alcohol on his person, and

aggression.     Officer Shafer detained Appellant for public intoxication.               BlackFinn personnel in

the parking lot were able to flag down on-duty patrol Officer Andres Pena who was in the area.

Officer Pena arrested Appellant and discovered a small handgun at Appellant’s waistband when

conducting a custodial pat down. The Makarov nine-millimeter handgun was loaded with one

round in the chamber.

         Appellant was indicted on one count of unlawfully carrying a weapon on a premises

licensed or issued a permit by the state of Texas for the sale of alcoholic beverages. The

indictment also contained a repeat offender notice pertaining to Appellant’s prior conviction of

possession of a controlled substance.          At the time of his arrest, Appellant was also on probation

in Dallas County for deadly conduct.                  Conditions of his probation included obtaining

permission before leaving Dallas County, a prohibition against possessing weapons, and a

prohibition on going to bars or drinking alcohol, all of which Appellant violated the night of his

arrest. After the State offered Appellant a plea deal, he rejected the State’s offer and opted for

an open plea to the court in hopes of receiving probation instead of incarceration.                               At

punishment, Appellant testified to his status as a business and home owner, his support

obligations to his young daughter both financially and as a participating father, and that he helps


1
  As this case was transferred from our sister court in Fort Worth, we decide it in accordance with the precedent of
that court. TEX. R. APP. P. 41.3.
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support his mother and grandmother.       Appellant testified that he voluntarily opted for an open

plea to the court and understood the court could sentence him to anything within the two- to

twenty-year range of punishment for a third-degree felony, enhanced by one prior felony

conviction.    See TEX. PENAL CODE ANN. §§ 12.35, 12.42(a), 46.02(a),(c) (West 2011). The

trial court acknowledged it would have been strongly persuaded to consider probation had

Appellant not been on felony probation at the time of this offense. The trial court proceeded to

sentence Appellant to five years’ confinement in the Institutional Division of the Texas

Department of Criminal Justice.     Appellant raises one issue on appeal.

                                           DISCUSSION

          In his sole issue on appeal, Appellant claims the trial court abused its discretion in

assessing his punishment.      Specifically, he argues the court failed to consider Appellant’s

admission of guilt, work history, status as a business and home owner, and his family

responsibilities as mitigating factors.   In order to assert error on appeal pertaining to sentencing

or punishment, an appellant must have properly preserved the error below.           TEX. R. APP. P.

33.1(a)(1). See Mercado v. State, 718 S.W.2d 291, 296 (Tex. Crim. App. 1986); Means v.

State, 347 S.W.3d 873, 874 (Tex. App.—Fort Worth 2011, no pet.). Appellant did not object to

his sentence after its pronouncement or file a motion for new trial raising the issue before the

trial court.   As such, Appellant failed to preserve his disproportionate sentence complaint for

appeal.     Means, 347 S.W.3d at 874.

          Even assuming preservation of error occurred, we note that Appellant’s sentence falls

within the statutory limits.    TEX. PENAL CODE ANN. §§ 12.42(a), 12.33 (West 2011). The

Second Court of Appeals has determined sentences within the statutory limits generally do not


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constitute disproportional or excessive punishment.      Kim v. State, 283 S.W.3d 473, 475 (Tex.

App.—Fort Worth 2009, pet. ref’d); Dale v. State, 170 S.W.3d 797, 799 (Tex. App.—Fort Worth

2005, no pet.); Alvarez v. State, 63 S.W.3d 578, 580 (Tex. App.—Fort Worth 2001, no pet.).

Appellant was convicted of a third-degree felony offense.           However, his punishment was

assessed based on a second-degree felony conviction pursuant to the habitual felony offender

section of the Texas Penal Code.         TEX. PENAL CODE ANN. § 12.42(a) (West 2011).            The

statutory sentencing guidelines for a felony in the second degree are a term of confinement not

less than two years or more than twenty years.        TEX. PENAL CODE ANN. § 12.33 (West 2011).

Appellant received a sentence of five years’ confinement, fifteen years below the statutorily

permissible maximum. TEX. PENAL CODE ANN. § 12.33 (West 2011).                  Moreover, Appellant’s

contention that the trial court did not consider other mitigating factors are disputed by the trial

court’s declaration it carefully considered the presentence report and testimony presented before

it and would have strongly considered probation had Appellant not already been on felony

probation at the time of this offense.   Appellant’s sole issue is overruled.

       We observe the judgment lists the statute of Appellant’s offense as TEX. PENAL CODE

ANN. § 46.02(f).    We modify the judgment to reflect the correct section of the statute which is

TEX. PENAL CODE ANN. § 46.02(a),(c) (West 2011).

                                          CONCLUSION

       The trial court’s judgment is affirmed as modified.


March 19, 2014                                 GUADALUPE RIVERA, Justice

Before McClure, C.J., Rivera, and Rodriguez, JJ.

(Do Not Publish)

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