MODIFY and AFFIRM; and Opinion Filed October 30, 2014.




                                         S    In The
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                      No. 05-13-00530-CR
                                      No. 05-13-00536-CR

                              JOEL DERVIN WILLIS, Appellant
                                          V.
                              THE STATE OF TEXAS, Appellee

                     On Appeal from the Criminal District Court No. 1
                                   Dallas County, Texas
                    Trial Court Cause Nos. F11-26322-H & F11-26316-H

                             MEMORANDUM OPINION
                        Before Justices FitzGerald, Fillmore, and Stoddart
                                   Opinion by Justice Fillmore

       The trial court granted the State’s motions to adjudicate, found Joel Dervin Willis guilty

of two offenses of aggravated sexual assault of a child, and assessed punishment of fifteen years’

imprisonment in each case.       In his first issue, Willis contends the trial court improperly

considered evidence that Willis failed two polygraph examinations in determining his

punishment, resulting in sentences that are grossly disproportionate to the crimes and

inappropriate to the offender. In two additional issues, Willis asserts the judgments should be

modified to reflect he pleaded true to the State’s allegations without the benefit of plea bargains.

In a “cross-point,” the State requests the judgments also be modified to reflect that Willis is

required to register as a sex offender and his victim was twelve years old. As modified, we
affirm the trial court’s judgments.   We issue this memorandum opinion because the law to be

applied in this case is well settled. See TEX. R. APP. P. 47.4.

                                            Background

       In each case, Willis pleaded guilty to the charge he sexually assaulted his granddaughter,

who was younger than fourteen years of age at the time of the offense. Pursuant to Willis’s plea

bargain agreements, the trial court deferred an adjudication of guilt and placed Willis on deferred

adjudication community supervision for ten years for each offense.

       The State filed a motion to adjudicate guilt in each case, alleging Willis violated the

conditions of his community supervision by failing to refrain from contact with any child

seventeen years of age or younger, failing to participate in counseling through an approved

registered sex offender treatment provider, and failing to pass a clinical polygraph at least once

every twelve months or as directed by a therapist or supervision officer. In cause number F11-

26322-H, the State also alleged Willis violated the conditions of his community supervision by

failing to pay court costs and fines. In cause number F11-26316-H, the State’s motion contained

the additional allegations that Willis violated the conditions of his community supervision by

failing to pay fees for community supervision, the Crime Stoppers’ program, urinalysis, and the

Sex Offender Fund.      In each case, Willis entered an open plea of true to all the State’s

allegations.

       The State rested after the trial court admitted into evidence Willis’s judicial confessions

and stipulations that he committed the alleged violations of the conditions of his community

supervision. Willis testified during his case-in-chief. As relevant to this appeal, Willis agreed

with his counsel that he had done a “really poor job” with regard to his probation and that it had

not “gone well” with regard to “sex education classes, polygraphs, and all that.” Willis’s counsel

then asked:

                                                –2–
           Now, you understand in this situation, they’ve alleged failure to – or some bad
           polygraph results, and you are being removed from the sex offender’s education
           class; you understand that?

Willis responded, “Yes, sir.” During the State’s cross-examination of Willis, the following

exchange occurred:

           Prosecutor: Yet you’ve continued to fail two polygraphs in the last two months,
           right?

           Willis: Right.

           Prosecutor: And you failed those two polygraphs because you’re having contact
           with minor children, right?

           Willis: I had a – a contact with a neighbor kid that road [sic] her bike up and
           down the street, and she stopped by and – and asked, you know my name and all
           that. I told her. I don’t want to be rude because the lady – she’s a nice lady that –
           that lives there and has this little girl that comes and stays with her some times.

Willis did not object to the prosecutor’s questions.

           The trial court adjudicated Willis guilty of both offenses and assessed punishment of

fifteen years’ imprisonment in each case.

                                                        Adjudication of Guilt

           In his first issue, Willis asserts the trial court erred by adjudicating his guilt “because the

Court considered inadmissible evidence that Willis failed several polygraphs which resulted in a

sentence that is grossly disproportionate to the crime and inappropriate to the offender.” Willis

first argues the trial court erred by admitting evidence that Willis failed two polygraph

examinations. 1 To preserve error for appellate review, a party must make a timely request,


     1
        In support of this argument, Willis relies on Leonard v. State, 385 S.W.3d 570 (Tex. Crim. App. 2012) (op. on reh’g). In Leonard, one
condition of the defendant’s community supervision was that he submit to polygraph testing and show no deception during the tests. Id. at 572.
As relevant to this case, the State moved for an adjudication of guilt based on the defendant allegedly violating the terms of his community
supervision by showing “significant criteria indicative of deception” during a polygraph examination and by failing to successfully complete sex-
offender treatment. Id. at 572–73. During the hearing on the State’s motion to adjudicate, the trial court overruled the defendant’s objection that
the results of polygraph examinations were unreliable and, therefore, inadmissible. Id. at 573. A psychotherapist then testified the defendant had
been discharged from a sex offender treatment program because he had failed a number of polygraph examinations, indicating he was engaged in
“secret keeping.” Id. As relevant to this appeal, the court of criminal appeals concluded a condition of community supervision that required the
defendant to “show no deception” on a polygraph examination did not present a sufficient basis to compel the admission of polygraph results. Id.
at 582–83. Unlike this case, the defendant in Leonard preserved error in the admission of the results of the polygraph examinations by timely
objecting in the trial court and obtaining a ruling. See TEX. R. APP. P. 33.1(a); Donovan v. State, No. 02-11-00033-CR, 2014 WL 975728, at *4–


                                                                      –3–
objection, or motion to the trial court that “state[s] the grounds for the ruling . . . sought from the

trial court with sufficient specificity to make the trial court aware of the complaint, unless the

specific grounds were apparent from the context.” TEX. R. APP. P. 33.1(a)(1)(A); Willis v. State,

785 S.W.2d 378, 384 (Tex. Crim. App. 1989) (defendant waived error in mention of polygraph

examination by failing to make timely and specific objection), overruling on other grounds

recognized by Estrada v. State, 313 S.W.3d 274, 303 (Tex. Crim. App. 2010); Jasso v. State, 112

S.W.3d 805, 813 (Tex. App.—Houston [14th Dist.] 2003, pet. ref’d) (defendant waived objection

to testimony about polygraph examination by failing to make timely objection); see also Leonard

v. State, 385 S.W.3d 570, 577 (Tex. Crim. App. 2010) (op. on reh’g) (“results of polygraph

examinations are inadmissible over proper objection” (emphasis added)). 2 Willis not only raised

the issue of the failed polygraph examinations on direct examination, but failed to object when

the prosecutor questioned him about the two polygraph examinations. Therefore, Willis has not

preserved his complaint for appellate review. See Willis, 785 S.W.2d at 384; Jasso, 112 S.W.3d

at 813.

           Willis also argues the trial court’s consideration of the evidence that Willis failed two

polygraph examinations led to the imposition of sentences that were disproportionate to the

crime and cruel or unusual punishment, in violation of the Eighth and Fourteenth Amendments

to the United States Constitution. Willis did not complain about the sentences either at the time

they were imposed or in a motion for new trial. See TEX. R. APP. P. 33.1(a)(1)(A); Casteneda v.

State, 135 S.W.3d 719, 723 (Tex. App.—Dallas 2003, no pet.). Therefore, he has not preserved

this argument for appellate review.


5 (Tex. App.—Fort Worth Mar. 13, 2014, pet. granted) (en banc) (concluding Leonard did not control when defendant failed to object to
conditions of community supervision at earliest opportunity).
     2
        See also Hawkins v. State, No. 05-09-00816-CR, 2011 WL 168603, at *2 (Tex. App.—Dallas Jan. 20, 2011, no pet.) (mem. op., not
designated for publication) (defendant waived complaints regarding admission of results of polygraph examination by failing to timely object in
trial court each time results of examination were referenced during testimony).



                                                                    –4–
       Moreover, punishment that is assessed within the statutory range for an offense is neither

excessive nor unconstitutionally cruel or unusual. Kirk v. State, 949 S.W.2d 769, 772 (Tex.

App.—Dallas 1997, pet. ref’d); see also Jackson v. State, 680 S.W.2d 809, 814 (Tex. Crim. App.

1984). Aggravated sexual assault of a child younger than fourteen years of age is a first-degree

felony punishable by imprisonment for life or for any term of not more than ninety-nine years or

less than five years. See TEX. PENAL CODE ANN. §§ 12.32(a) (West 2011); 22.021(a)(1)(B),

(a)(2)(B),(e) (West Supp. 2014).      Willis’s fifteen-year sentences are within the statutory

punishment range.

       We resolve Willis’s first issue against him.

                                  Modification of Judgments

       In his second and third issues, Willis requests that we modify the judgment in each case

to reflect he entered the pleas of true without the benefit of plea bargains. The State agrees the

judgments should be modified to reflect Willis entered open pleas of true and requests in a

“cross-point” that we also modify the judgments to reflect Willis is subject to sex offender

registration requirements and his victim was twelve years old.

       We may modify a trial court’s written judgment to correct a clerical error when we have

the necessary information before us to do so. TEX. R. APP. P. 43.2(b); Bigley v. State, 865

S.W.2d 26, 27–28 (Tex. Crim. App. 1993); Asberry v. State, 813 S.W.2d 526, 529–30 (Tex.

App.—Dallas 1991, pet. ref’d). Accordingly, we resolve Willis’s second two issues in his favor

and modify the trial court’s judgments to reflect Willis pleaded true without the benefit of plea

bargains. We further modify the trial court’s judgments to reflect Willis is subject to sex

offender registration requirements.    See TEX. CODE CRIM. PROC. ANN. arts. 62.001(5)(A),

62.051(a) (West Supp. 2013). However, the appellate record reflects that the evidence before the

trial court when Willis pleaded guilty and was placed on deferred adjudication and when Willis

                                               –5–
was adjudicated guilty established only that Willis’s victim was younger than fourteen years of

age. 3 Accordingly, we further modify the judgments to reflect that Willis’s victim was younger

than fourteen years of age at the time of the offenses.

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




                                                                                /Robert M. Fillmore/
                                                                                ROBERT M. FILLMORE
                                                                                JUSTICE

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

130530F.U05




     3
        During the hearing on the State’s motion to adjudicate guilt, the trial court took judicial notice of Willis’s “probation file.” That file is not
in the appellate record.



                                                                         –6–
                                         S
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                       JUDGMENT

JOEL DERVIN WILLIS, Appellant                        On Appeal from the Criminal District Court
                                                     No. 1, Dallas County, Texas,
No. 05-13-00530-CR         V.                        Trial Court Cause No. F11-26322-H.
                                                     Opinion delivered by Justice Fillmore,
THE STATE OF TEXAS, Appellee                         Justices FitzGerald and Stoddart
                                                     participating.

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

       The section of the judgment titled “Terms of Plea Bargain” that states “15
       YEARS TDCJ” is modified to state “Open.”

       The section of the judgment that states “Sex Offender Registration Requirements
       do not apply to the Defendant” is modified to state “Sex Offender Registration
       Requirements apply to the Defendant.”

       The section of the judgment that states “The age of the victim at the time of the
       offense was N/A” to state “At the time of the offense, the victim was younger
       than fourteen years of age.”

As MODIFIED, the judgment is AFFIRMED.


Judgment entered this 30th day of October, 2014.




                                               –7–
                                         S
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                       JUDGMENT

JOEL DERVIN WILLIS, Appellant                        On Appeal from the Criminal District Court
                                                     No. 1, Dallas County, Texas,
No. 05-13-00536-CR         V.                        Trial Court Cause No. F11-26316-H.
                                                     Opinion delivered by Justice Fillmore,
THE STATE OF TEXAS, Appellee                         Justices FitzGerald and Stoddart
                                                     participating.

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

       The section of the judgment titled “Terms of Plea Bargain” that states “15
       YEARS TDCJ” is modified to state “Open.”

       The section of the judgment that states “Sex Offender Registration Requirements
       do not apply to the Defendant” is modified to state “Sex Offender Registration
       Requirements apply to the Defendant.”

       The section of the judgment that states “The age of the victim at the time of the
       offense was N/A” to state “At the time of the offense, the victim was younger
       than fourteen years of age.”

As MODIFIED, the judgment is AFFIRMED.

Judgment entered this 30th day of October, 2014.




                                               –8–
