Affirmed and Memorandum Opinion filed July 10, 2014.




                                            In The

                        Fourteenth Court of Appeals

                                   NO. 14-13-00654-CR
                                   NO. 14-13-00655-CR

                         TROY AIKMAN ERWIN, Appellant
                                               V.

                          THE STATE OF TEXAS, Appellee

                     On Appeal from the 252nd District Court
                             Jefferson County, Texas1
                   Trial Court Cause Nos. 12-15271 and 12-15552

                    MEMORANDUM                           OPINION


       This is an appeal from a judgment of guilt following a deferred adjudication.
Without an agreed recommendation, appellant entered a “guilty” plea to the

       1
          This case was transferred to this court from the Ninth Court of Appeals. In cases
transferred by the Supreme Court of Texas from one court of appeals to another, the transferee
court must decide the case in accord with the precedent of the transferor court if the transferee
court’s decision would have been inconsistent with the precedent of the transferor court. See Tex.
R. App. P. 41.3.
offenses of burglary of a building and burglary of a habitation. In each case, the
trial court deferred adjudication of guilt and placed appellant on probation for five
years. Subsequently, on the State’s motion, the trial court adjudicated guilt in both
cases. The trial court sentenced appellant to confinement in the State Jail Division
of the Texas Department of Criminal Justice for two years for the offense of
burglary of a building and fifteen years in the Institutional Division of the Texas
Department of Criminal Justice for the offense of burglary of a habitation. The
sentences were ordered to run concurrently. Appellant filed a timely notice of
appeal in each case.

      In his first issue, appellant asserts the sentence assessed for burglary of a
habitation was excessive and “the record does not disclose that a lesser sentence
than fifteen (15) years was ever considered.”2 Appellant was required to make a
timely objection in the trial court to preserve any complaint that his sentence was
excessive. See Tex. R. App. P. 33.1(a); Arriaga v. State, 335 S.W.3d 331, 334
(Tex. App.—Houston [14th Dist.] 2010, pet. ref’d). Appellant did not raise the
issue at his sentencing hearing or in a motion for new trial. Accordingly, that issue
is not preserved for our review. Id.

       In anticipation of a possible waiver, appellant asserts in his appellate brief
that the trial judge prejudged the sentences, citing to Ex parte Brown, 158 S.W.3d
449, 452 (Tex. Crim. App. 2005). Appellant’s reliance on this case to support this
claim is misplaced. In Brown, the record established the trial judge told appellant
what his sentence would be “if he messed up on probation” and the trial judge then
assessed that sentence.         The record before us does not reflect the trial judge
prejudged the sentence or refused to consider the entire range of punishment in
assessing appellant’s punishment. Appellant’s first issue is overruled.

      2
          Appellant makes no claim as to the two-year sentence for burglary of a building.

                                                2
      In his second issue, appellant asserts the trial court erred in assessing a $500
fine “in the written judgment and sentence without oral pronouncement in open
court.” The judgment in each case reflects no fine was assessed. Appellant’s
second issue is overruled.

      Having overruled appellant’s issues, we affirm the judgment of the trial
court in each case.




                                       /s/       Kem Thompson Frost
                                                 Chief Justice



Panel consists of Chief Justice Frost and Justices Donovan and Brown.
Do Not Publish — Tex. R. App. P. 47.2(b).




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