NUMBER 13-21-00352-CR

COURT OF APPEALS 

THIRTEENTH DISTRICT OF TEXAS 

CORPUS CHRISTI – EDINBURG 

 

CUONG MANH DANG, Appellant,

 v. 

THE STATE OF TEXAS, Appellee.

 

On appeal from the 214th District Court 

of Nueces County, Texas.

 

MEMORANDUM OPINION 

Before Justices Benavides, Hinojosa, and Silva

Memorandum Opinion by Justice Silva

Appellant Cuong Manh Dang appeals the trial court’s judgment revoking his 

community supervision, adjudicating him guilty of aggravated assault with a deadly 

weapon, a second-degree felony, and sentencing him to two years’ confinement in the 

Texas Department of Criminal Justice Correctional Institutions Division (TDCJ). See TEX.

PENAL CODE ANN. § 22.02(a)(2). By a single issue, Dang argues that the sentence 
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imposed by the trial court is disproportionate to the seriousness of the offense in violation 

of the Eighth and Fourteenth Amendments of the United States Constitution. See U.S.

CONST. amends. VIII, XIV. We affirm as modified.

I. BACKGROUND

On April 26, 2018, Dang was indicted for aggravated assault with a deadly weapon 

against a family member causing serious bodily injury, a first-degree felony. See TEX.

PENAL CODE ANN. § 22.02(b)(1); TEX. FAM. CODE ANN. § 71.003. On February 21, 2019, 

pursuant to a plea agreement, Dang pleaded guilty to aggravated assault with a deadly 

weapon against a family member without causing serious bodily injury, a second-degree 

felony. See TEX. PENAL CODE ANN. § 22.02(a)(2); TEX. FAM. CODE ANN. § 71.003. The trial 

court placed Dang on deferred adjudication community supervision for a period of two 

years. See TEX. CODE CRIM PROC. ANN. art. 42A.101. In July 2019, Dang’s conditions of 

probation were modified to include twenty-four hours’ confinement in the Nueces County 

Jail as a sanction for violating the terms of his probation. A subsequent modification to 

his conditions extended the term of probation by six months.

On March 5, 2021, the State filed a motion to revoke Dang’s probation, alleging 

that he violated several conditions of his probation. On April 28, 2021, the State filed its

first amended motion to revoke Dang’s probation, alleging as follows: (1) Dang committed 

the offense of reckless driving on or about April 17, 2021; (2) Dang failed to report his 

April 2021 arrest within twenty-four hours; (3) Dang was in violation of curfew during his 

April 2021 arrest; (4) on December 15, 2020, Dang tested positive for cocaine and 

[Methylenedioxy-methamphetamine (MDMA)]; and (5) Dang “failed to adhere to [the] 

Court ordered payment plan.”
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The trial court heard the State’s motion to revoke on August 24, 2021, via remote 

videoconferencing. The State announced that the parties reached an agreement wherein 

it would abandon the allegation that Dang committed the offense of reckless driving and 

Dang would plead true to the remaining allegations. The parties disagreed, however, as 

to the disposition. 

The State requested that Dang be sanctioned and sentenced to an inpatient 

substance abuse treatment facility noting, however, that Dang did not speak English, and 

his progress would be frustrated by his inability to participate in the programs. Dang 

requested that the trial court consider his time served in jail and on an ankle monitor, 

allow him to pay off his remaining financial obligations, and release him from probation.1

In the alternative, Dang asked the trial court to order a jail sanction and extend his 

probation. Dang postulated that a prison sentence “would end up getting him deported.”

Dang testified with an interpreter during the punishment phase of the hearing and, 

despite the State abandoning ground one in its motion to revoke, was asked about the 

alleged offense of reckless driving. Dang acknowledged that he ran a red light and drove 

“about 80 miles-an-hour in a 45 mile-an-hour speed zone.” Dang further acknowledged 

that he tested positive for cocaine and MDMA, but after the drug test, “[he] never used 

any of that anymore.” The trial court noted that Dang’s wife, Kimcuc Thi Pham, the 

complainant in the underlying aggravated assault, appeared next to Dang during the 

remote hearing, though a no-contact provision was issued as a condition of his probation. 

1 It is not clear whether Dang was requesting the trial court adjudicate him guilty and assess his 

punishment as time-served or to release him from community supervision without adjudicating him guilty.

See generally, TEX. CODE. CRIM. PROC. arts. 42A.701–.757.
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Dang explained to the trial court that he only asked his wife to assist him with their children 

after he got arrested.

The trial court found the allegations in the State’s motion to be true, revoked Dang’s 

community supervision, adjudicated him guilty of the underlying offense, and sentenced 

him to two years’ confinement in TDCJ. See TEX. PENAL CODE ANN. § 22.02(a)(2); TEX.

FAM. CODE ANN. § 71.003. On September 1, 2021, and October 13, 2021, Dang filed 

identical motions for reconsideration or to modify conditions of his probation, requesting 

the trial court reconsider his sentence because “[he] did not fully present to the [c]ourt 

[the] circumstances of his case and personal background.” Dang’s motions did not 

complain that his sentence was disproportionate. On September 13, 2021, the trial court 

denied Dang’s first motion to reconsider, but no order granting or denying his second 

motion appears in the record. This appeal followed.

II. ANALYSIS

By his sole issue, Dang contends that the sentenced imposed on him by the trial 

court is disproportionate to the crime committed. The Eighth Amendment to the United 

States Constitution prohibits cruel and unusual punishment, including sentences that are 

disproportionate to the crime committed. Solem v. Helm, 463 U.S. 277, 284 (1983); State 

v. Simpson, 488 S.W.3d 318, 322–24 (Tex. Crim. App. 2016) (applying an Eighth 

Amendment disproportionality claim to state-law convictions); see U.S. CONST. amend 

VIII; see also State v. Hernandez, No. 13-19-00245-CR, 2020 WL 2487567, at *4 (Tex. 

App.—Corpus Christi–Edinburg May 14, 2020, no pet.) (mem. op., not designated for 

publication). A successful challenge to proportionality is exceedingly rare and requires 

the sentence be “grossly disproportionate” to the crime. Simpson, 488 S.W.3d at 323
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(citing Lockyer v. Andrade, 538 U.S. 63, 73 (2003)).

To preserve a complaint that a sentence is disproportionate to the offense 

committed, a defendant must present a timely objection to the trial court, state the specific 

grounds for the objection, and obtain a ruling. Trevino v. State, 174 S.W.3d 925, 927–28

(Tex. App.—Corpus Christi–Edinburg 2005, pet. ref’d); see TEX. R. APP. P. 33.1(a); see 

also Collins v. State, No. 13-20-00144-CR, 2022 WL 400825, at *7 (Tex. App.—Corpus 

Christi–Edinburg Feb. 10, 2022, pet. ref’d) (mem. op., not designated for publication) 

(concluding appellant’s grossly disproportionate claim was not preserved for review 

where issue of disproportionate sentencing was not raised in appellant’s motion for new 

trial). “Even constitutional claims can be waived by failure to object.” Trevino, 174 S.W.3d

at 927 (citing Smith v. State, 721 S.W.2d 844, 855 (Tex. Crim. App. 1986)).

As the State points out in its brief, Dang did not object on any grounds to the 

sentence when it was imposed, nor did he file a motion for new trial arguing the sentence 

was disproportionate. See id.; see also Collins, 2022 WL 400825, at *7. Accordingly, by 

failing to make a timely objection or motion asserting the punishment qualified as 

disproportionate, Dang failed to preserve any error for appeal. See TEX. R. APP. P.

33.1(a); Trevino, 174 S.W.3d at 927. Dang’s sole issue is overruled.2

III. JUDGMENT MODIFICATION

During our independent review of the record, we observed a clerical error in the 

judgment, which sets forth that Dang was found guilty and convicted under Texas Penal 

2 We note that under Solem and its progeny, a two-year sentence for aggravated assault with a 

deadly weapon against a family member would not likely be found to be disproportionate. See Solem v. 

Helm, 463 U.S. 277, 284 (1983); State v. Simpson, 488 S.W.3d 318, 322–24 (Tex. Crim. App. 2016); see 

also TEX. PENAL CODE ANN. § 12.33(a) (setting the minimum punishment for second-degree felonies to two 

years’ confinement). 
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Code § 22.02(b)(1). However, pursuant to the plea agreement, the finding of serious 

bodily injury, an element of § 22.02(b)(1), was expressly abandoned. See TEX. PENAL 

CODE ANN. § 22.02(b)(1). Rather, Dang was convicted under § 22.02(a)(2): “us[ing] or 

exhibit[ing] a deadly weapon during the commission of the assault.” See id. § 22.02(a)(2).

We may modify incorrect judgments to make the record “speak the truth” when we 

have the necessary information, and we may do so on our own motion. See 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). We have the power 

to modify whatever the trial court could have corrected by a judgment nunc pro tunc when 

the information necessary to correct the judgment appears in the record. Ette v. State, 

551 S.W.3d 783, 792 (Tex. App.—Fort Worth 2017), aff’d, 559 S.W.3d 511 (Tex. Crim. 

App. 2018). We conclude that the necessary information to correct the judgment appears 

in the record. See id. Therefore, we modify the trial court’s judgment to reflect that Dang

was convicted under Texas Penal Code § 22.02(a)(2).

IV. CONCLUSION

We affirm the trial court’s judgment as modified.

CLARISSA SILVA

Justice

Do not publish.

TEX. R. APP. P. 47.2(b).

Delivered and filed on the

4th day of August, 2022.