BOBBY WAYNE WILKINSON v. THE STATE OF TEXAS (2010)

MEMORANDUM OPINION

Opinion By Justice Moseley

Bobby Wayne Wilkinson waved a jury and pleaded guilty to credit card abuse.   See Tex. Penal Code Ann. § 32.31(b)(1) (Vernon Supp.2009).   The trial court assessed punishment at twenty-one months in a state jail facility and a $1500 fine.   In a single point of error, appellant contends the trial court abused its discretion by sentencing him to imprisonment.   We affirm.   The background of this case and the evidence adduced at trial are well known to the parties, and therefore we limit recitation of the facts.   We issue this memorandum opinion pursuant to Texas Rule of Appellate Procedure 47.4 because the law to be applied in the case is well settled.

Appellant contends the trial court abused its discretion and violated the objectives of the Texas Penal Code by sentencing him to imprisonment because the sentence is not necessary to prevent the recurrence of his criminal behavior.   Appellant asserts the sentence is excessive in light of the fact that he had rejected a plea offer from the State of one year in state jail because he wanted to ask the judge for probation.   Appellant argues that because he had successfully completed a prior probation, and because he needed to assist his mother, who has cancer, the trial court should have assessed probation.   The State responds that appellant has failed to preserve his complaint for appellate review and, alternatively, the record does not show the sentence violated the objectives of the penal code.

Appellant did not complain about the sentence either at the time it was imposed or in his motion for new trial.   See Tex.R.App. P. 33.1(a)(1);  Castaneda v. State, 135 S.W.3d 719, 723 (Tex.App.-Dallas 2003, no pet.) (for error to be preserved for appeal, the record must show appellant made a timely request, objection, or motion).   After sentencing, appellant did not object to the sentence, and his motion for new trial complained that the “verdict” was “contrary to the law and the evidence.”   Thus, appellant has not preserved this issue for our review.

Even if appellant had preserved error, however, his argument still fails.   As a general rule, punishment that is assessed within the statutory range for the offense is not excessive or unconstitutionally cruel or unusual.  Kirk v. State, 949 S.W.2d 769, 772 (Tex.App.-Dallas 1997, pet. ref'd).   In this case, the trial court imposed punishment within the statutory range for the offense.   See Tex. Penal Code Ann. §§ 12.32, 32.31(d) (Vernon Supp.2009).

We conclude the trial court did not abuse its discretion in assessing the twenty-one month state-jail sentence.   See Jackson v. State, 680 S.W.2d 809, 814 (Tex.Crim.App.1984) (as long as a sentence is within the proper range of punishment, it will not be disturbed on appeal).   We resolve appellant's sole issue against him.

We affirm the trial court's judgment.

JIM MOSELEY JUSTICE