AFFIRMED AS MODIFIED; Opinion Filed October 10, 2019




                                             In The
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                      No. 05-18-01154-CR

                               DANIEL ROY PENA, Appellant
                                          V.
                              THE STATE OF TEXAS, Appellee

                      On Appeal from the Criminal District Court No. 3
                                   Dallas County, Texas
                            Trial Court Cause No. F17-59397-J

                             MEMORANDUM OPINION
               Before Chief Justice Burns, Justice Whitehill, and Justice Schenck
                                  Opinion by Justice Schenck
       Daniel Roy Pena appeals from his conviction of driving while intoxicated. In a single

issue, he argues the trial court abused its discretion by sentencing him to a term of imprisonment.

By cross-issue, the State requests the judgment be modified to reflect appropriate costs and the

correct DWI statute. We affirm the judgment as modified below. Because all issues are settled in

law, we issue this memorandum opinion. TEX. R. APP. P. 47.4.

                                         BACKGROUND

       On November 3, 2017, appellant consumed at least four beers, drove his car, and caused a

collision that flipped his car over. Dallas police officer Michael Bui, who was called to the scene

of the accident, took appellant to the hospital where his blood alcohol content was measured at

0.148. Soon thereafter, appellant was indicted for his third offense of driving while intoxicated.

The indictment included two enhancement paragraphs stating that appellant had two prior
convictions for driving while intoxicated. In August 2018, pursuant to a plea agreement, the State

moved to strike the second enhancement paragraph and appellant entered an open plea of guilty to

the charged offense and a plea of true to the first enhancement paragraph. The trial court accepted

appellant’s pleas, scheduled sentencing for a later date, and ordered a pre-sentence report.

       On September 12, 2018, the trial court held a sentencing hearing. After hearing testimony

from Officer Bui and appellant, the trial court sentenced appellant to ten years’ imprisonment.

                                      APPEAL OF SENTENCE

       In his sole issue on appeal, appellant argues the trial court abused its discretion by

sentencing him to imprisonment, which he urges does not meet the objective of rehabilitation, fails

to address his drug or alcohol addiction, and is merely punitive.

       The State responds that appellant failed to preserve this issue for review, pointing out that

appellant failed to object at any time during the sentencing hearing regarding the trial court’s

judgment, nor did he file any motion for new trial.

       Appellant asserts that no specific objection was required because his ground for an appeal

is apparent from the context of this record where the only issue before the trial court was of

sentencing, appellant pleaded guilty and requested to be placed on probation in a treatment

program for his drug and alcohol addiction, and the trial court sentenced him to a term of years.

In support, he cites us to 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.). This Court has previously considered whether

a complaint for excessive punishment could be raised without a specific objection and deemed

Montgomery, Edwards, and Garza to be unpersuasive because they did not involve a complaint

that punishment was excessive and violated the objectives of the penal code. See Garza v. State,
No. 05-11-01626-CR, 2013 WL 1683612, at *2 (Tex. App.—Dallas Apr. 18, 2013, no pet.) (citing

Montgomery, 99 S.W.3d at 259–60; Edwards, 21 S.W.3d at 625; and Garza, 841 S.W.2d at 19).

         Appellant also argues this record presents a fundamental error in punishment that can be

raised for the first time on appeal, citing to cases from sister appellate courts where the appellate

courts held a defendant may complain for the first time on appeal about a trial court’s refusal to

consider the full range of punishment where the judge’s comments indicated impartiality. See

Hernandez v. State, 268 S.W.3d 176, 184 (Tex. App.—Corpus Christi 2008, no pet.); Jaenicke v.

State, 109 S.W.3d 793 (Tex. App.—Houston [1st Dist.] 2003, pet. ref’d). Since appellant does not

argue the trial court was biased against him, we conclude those cases are distinguishable. See

Garza, 2013 WL 1683612, at *2.

         However, even had appellant preserved his complaint for appellate review, we would

resolve it against him. The objectives of the system of prohibitions, penalties, and correctional

measures in the penal code include:

            (A) the deterrent influence of the penalties hereinafter provided;

            (B) the rehabilitation of those convicted of violations of this code; and

            (C) such punishment as may be necessary to prevent likely recurrence of criminal

                behavior.

         TEX. PENAL CODE ANN. § 1.02(1). Further, a trial judge is given wide latitude to determine

the appropriate sentence in a given case. Tapia v. State, 462 S.W.3d 29, 46 (Tex. Crim. App.

2015).

         Appellant asserts he admitted to having a drug and alcohol problem and to requesting help

for it in that he requested to be sent to an intermediate sanctions facility (ISF) for substance abuse.

Appellant concedes he had been sentenced to ISF in the past, but he urges that treatment he

received was for cognitive training, not alcohol or drug treatment.
       The record reflects appellant had two prior convictions for driving while intoxicated, had

been placed on probation for both, which were both revoked. He also had numerous assault

convictions. Appellant testified he had been addicted to heroin since he was fifteen years old and

in his efforts to stop using heroin, he began to drink more, despite his multiple convictions for

driving while intoxicated. Furthermore, appellant admitted he committed the instant offense while

on parole for another offense, one of the conditions of which was to refrain from using any alcohol.

Although a third DWI is a third-degree felony, see PENAL § 49.09(b)(2), appellant also entered a

plea of true to the first enhancement paragraph of the indictment, which enhanced his punishment

range to that of a second-degree felony, see id. § 12.42(a). The statutory range for a second-degree

felony is two to twenty years’ imprisonment and a possible fine of not more than $10,000. See id.

§ 12.33.

       In light of the statutory objective of punishment and the fact that his sentence of ten years

lies squarely within the statutory range, we cannot conclude the trial court abused its discretion by

sentencing appellant to ten years’ imprisonment. We overrule appellant’s sole issue.

                                       STATE’S CROSS-ISSUE

       By cross-issue, the State urges the judgment be modified to correct the amount of costs and

the statute cited. The judgment reflects court costs of $284. However, the certified court fee

docket created after the trial court’s judgment reflects costs totaling $409. Court costs, as reflected

in a certified bill of costs, need neither be orally pronounced nor incorporated by reference in the

judgment to be effective. Armstrong v. State, 340 S.W.3d 759, 766 (Tex. Crim. App. 2011).

Additionally, the State complains that the judgment reflects appellant was found guilty of section

49.04 of the Texas Penal Code while the record reflects he entered a plea of guilty to section 49.09.

Compare PENAL § 49.04 with id. § 49.09.
       We have the authority to modify the trial court’s judgment to make the record speak the

truth. TEX. R. AP. P. 43.2(b); French v. State, 830 S.W.2d 607, 609 (Tex. Crim. App. 1991). We

sustain the State’s cross-issues and modify the judgment to reflect court costs of $409 and that

appellant was convicted of violation of section 49.09 of the penal code.

                                          CONCLUSION

       As modified, we affirm the trial court’s judgment.




                                                  /David J. Schenck/
                                                  DAVID J. SCHENCK
                                                  JUSTICE


DO NOT PUBLISH
Tex. R. App. P. 47
181154F.U05
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                      JUDGMENT

 DANIEL ROY PENA, Appellant                        On Appeal from the Criminal District Court
                                                   No. 3, Dallas County, Texas
 No. 05-18-01154-CR         V.                     Trial Court Cause No. F17-59397-J.
                                                   Opinion delivered by Justice Schenck.
 THE STATE OF TEXAS, Appellee                      Chief Justice Burns and Justice Whitehill
                                                   participating.

        Based on the Court’s opinion of this date, the judgment of the trial court is MODIFIED
as follows:
        To reflect court costs of $409 and that appellant was convicted of violation of
        section 49.09 of the penal code.

As MODIFIED, the judgment is AFFIRMED.


Judgment entered this 10th day of October, 2019.
