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In The

Court of Appeals

Ninth District of Texas at Beaumont

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NO. 09-13-00197-CR

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ADAM RUBERT LITTLEPAGE, Appellant

V.

THE STATE OF TEXAS, Appellee

_______________________________________________________ ______________

On Appeal from the 252nd District Court 

Jefferson County, Texas

Trial Cause No. 11-10942 

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MEMORANDUM OPINION 

Adam Rubert Littlepage pleaded guilty under a plea agreement to felony 

theft. The trial court found the evidence sufficient to find Littlepage guilty, but 

deferred further proceedings and placed him on five years of community 

supervision and assessed a $500.00 fine. The State subsequently filed a motion to

revoke. Littlepage pleaded “true” to violating two conditions of his community 

supervision. 
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In two appellate issues, Littlepage contends the trial court erred in assessing 

the maximum sentence without considering the entire range of punishment, and in 

assessing a $500 fine in the written judgment in the absence of an oral 

pronouncement of a fine at the time of sentencing. We affirm the trial court’s 

judgment as modified.

A trial court’s arbitrary refusal to consider the entire range of punishment 

constitutes a denial of due process. Ex parte Brown, 158 S.W.3d 449, 454 (Tex. 

Crim. App. 2005). In this case, the record does not indicate that Littlepage objected 

to his sentence. See Tex. R. App. P. 33.1(a). Even if Littlepage had objected, 

absent a clear showing to the contrary, we presume that the trial court was neutral 

and detached in sentencing the defendant and that the trial court considered the full 

range of punishment. See Brumit v. State, 206 S.W.3d 639, 645 (Tex. Crim. App. 

2006). Littlepage does not argue that the trial court was biased or partial, nor does 

he point to any evidence in the appellate record to demonstrate that the trial court 

failed to consider the whole range of punishment. And our review of the record 

does not indicate that the trial court made comments indicating bias, partiality, or a 

failure to consider the entire punishment range. See id. at 645-46.

Furthermore, Littlepage’s sentence is within the statutorily authorized range 

of punishment for the charged offense. See Tex. Penal Code Ann. §§ 12.35(a), 
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31.03(a),(b)(2),(e)(4) (West Supp. 2013).1 Generally, a sentence that is within the 

range of punishment established by the Legislature will not be disturbed on appeal. 

Jackson v. State, 989 S.W.2d 842, 846 (Tex. App.—Texarkana 1999, no pet.); see 

also Kirk v. State, 949 S.W.2d 769, 772 (Tex. App.—Dallas 1997, pet. ref’d). This 

includes sentences imposed at the statutory maximum. See Holley v. State, 167 

S.W.3d 546, 549-50 (Tex. App.—Houston [14th Dist.] 2005, pet. ref’d). 

Littlepage argues that he was punished for drug addiction, and that 

punishing a person for being a drug addict constitutes cruel and unusual 

punishment in violation of the Eighth and Fourteenth Amendments to the United 

States Constitution. The record shows that when his sentence was pronounced, 

Littlepage did not make this objection, and therefore he waived this complaint. See

Tex. R. App. P. 33.1(a); Rhoades v. State, 934 S.W.2d 113, 119-20 (Tex. Crim. 

App. 1996) (stating defendant forfeited complaint about his constitutional right to 

be free from cruel and unusual punishment by failing to raise objection in the trial 

court). To the extent Littlepage argues that the trial court did not consider the 

mitigating circumstances Littlepage presented, we note that the record does not 

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Because the amendments to sections 12.35 and 31.03 are not material to 

this case, we cite to the most recent publication of the respective statutes.
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reflect that the trial court refused to consider any of the evidence that Littlepage 

offered.2 Accordingly, we overrule Littlepage’s first issue. 

In his second issue, Littlepage argues the trial court abused its discretion by 

assessing a $500 fine against him in the written judgment adjudicating guilt when 

there was no pronouncement of the fine in the oral rendition of judgment at the 

revocation and adjudication hearing. See Taylor v. State, 131 S.W.3d 497, 502 

(Tex. Crim. App. 2004). The State concedes error and asks this Court to affirm the 

judgment, but modify it to delete the fine.

The trial court’s oral pronouncement sentenced Littlepage to two years in 

state jail and did not assess a fine. The first page of the written judgment reflects 

the defendant’s punishment as two years in prison with no amount indicated in the 

fine column. The second page of the judgment notes a fine of $500. To the extent 

there is a variance between the trial court’s oral pronouncement of judgment and 

the written judgment, the oral pronouncement controls. Id. at 500-02 (affirming 

court of appeal’s modification of judgment to remove fine assessed in the written 

judgment, but not orally pronounced); Ex parte Madding, 70 S.W.3d 131, 135 

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In his appellate brief, Littlepage requested that the “record . . . be amended 

to allow a supplemental reporter’s record as to all cases which were sentenced at 

the same date and time as [Littlepage’s sentencing].” He cites no authority to 

support his request that would, if granted, allow the record to be altered in such a 

manner. Furthermore, his request would seek to introduce evidence that was not 

presented to the trial court. See Tex. R. App. P. 38.1(i).
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(Tex. Crim. App. 2002). As requested by appellant and recommended by the State, 

we modify the written judgment to delete the $500 fine and any order to pay it. 

We affirm the judgment as modified. See Tex. R. App. P. 43.2(b).

AFFIRMED AS MODIFIED. 

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 LEANNE JOHNSON

 Justice

Submitted on July 7, 2014

Opinion Delivered September 3, 2014

Do Not Publish

Before McKeithen, C.J., Kreger and Johnson, JJ.