1 In The 

### Court of Appeals Ninth District of Texas at Beaumont

____________________ NO. 09
- 1 3
- 00 1 97
- C R



### ____________________ ADAM RU B ERT LITTLEPAGE , Appellant
V. THE STATE OF TEXAS , Appellee

_______________________________________________________ ______________ On Appeal from the 252n d District Court Jefferson County , Texas Trial Cause No. 11
- 10942

________________________________________________________ _____________ MEMORANDUM OPINION Adam Ru b ert Littlepage pleaded guilty under a plea agreement to felony theft. The trial court found the evidence sufficient to find Littlepage guilty, but deferred fu r ther 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.2 In two appellate issues, Littlepage contends the trial court erred in assessing the maximum sentence without considering the entire range of puni shment , 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 sentenc e. 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 t he trial court failed to consider the whole range of punishment. And o ur 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. Furthe rmore , Littlepage’s sentence is within the statutorily authorized range of punishment for the charged offense. See Tex. Penal Code Ann. §§ 12.35(a),3 31.03(a),(b)(2),(e)(4) (West Supp. 2013). 1 Generally, a sentence that is within the range of punishment est ablished 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 fo r drug addict ion , and that punishing a person for b eing 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,
L ittlepage 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, 1 19

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

1 Because the amendments to sections 12.35 and 31.03 are not material to this ca s e, we cite to the most recent publication of the respective statutes.4 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 iss ue, 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 hea ring. 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 j ail 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 var iance 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 pr onounced); Ex parte Madding , 70 S.W.3d 131, 135

2 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 tim e 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 T ex. R. App. P. 38.1(i).5 (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.

_________________________ LEANNE JOHNSON Justice Submitted on July 7 , 2014 Opinion Delivered September 3, 2014 Do Not Pub lish
Before McKeithen , C.J., Kreger and Johnson, JJ.