MARIO LEIVA v. THE STATE OF TEXAS (2010)

MEMORANDUM OPINION

Opinion By Justice Fillmore

Mario Leiva waived a jury and pleaded nolo contendere to two offenses of aggravated sexual assault of a child younger than fourteen years.   See Tex. Penal Code Ann. § 22.021(a)(1)(B)(i) (Vernon Supp.2009).   After finding Leiva guilty, the trial court assessed punishment at fifteen years' imprisonment and a $3000 fine in each case.   In a single issue, Leiva contends the trial court abused its discretion by sentencing him to imprisonment.   We affirm.   The background of these cases 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.

Leiva contends the trial court abused its discretion and violated the objectives of the Texas Penal Code by sentencing him to fifteen years' imprisonment in each case because the sentences are not necessary to prevent the recurrence of his criminal behavior.   Leiva asserts that because he was a working, productive member of society who supported his family, and he maintained a healthy, romantic relationship with another adult, the trial court should have assessed probation.   The State responds that Leiva has failed to preserve his complaint for appellate review and, alternatively, the fifteen-year sentences do not violate the objectives of the penal code.

Leiva did not complain about the sentences either at the time they were imposed or in his motions 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, Leiva did not object to the sentences, and his motions for new trial complained that the “verdicts” were “contrary to the law and the evidence.”   Thus, Leiva has not preserved this issue for our review.

Even if Leiva had preserved error, 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 these cases, the trial court imposed punishment within the statutory range for the offenses.   See Tex. Penal Code Ann. §§ 12.32, 22.021(e) (Vernon Supp.2009).

We conclude the trial court did not abuse its discretion in assessing the fifteen-year sentences.   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 Leiva's sole issue against him.

In each case, we affirm the trial court's judgment.

ROBERT M. FILLMORE JUSTICE