SAMUEL RUIZ v. THE STATE OF TEXAS (2010)

MEMORANDUM OPINION

Opinion By Justice Bridges

Samuel Ruiz waived a jury and pleaded guilty to aggravated robbery with a deadly weapon-a firearm and a knife.   See Tex. Penal Code Ann. §§ 29.02(a), 29.03(a) (West 2003).   After finding appellant guilty, the trial court assessed punishment at fifteen years' imprisonment.   In a single issue, appellant contends the sentence was not necessary to prevent the likely recurrence of his criminal behavior and it violates the objectives of the penal code.   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 rehabilitative objectives of the Texas Penal Code by sentencing him to fifteen years' imprisonment because the sentence is not necessary to prevent the recurrence of his criminal behavior.   Appellant asserts that because he was only eighteen years old and apologized for committing the offense, he should have received probation.   The State responds that appellant has failed to preserve his complaint for appellate review and, alternatively, the trial court complied with the objectives of the penal code in assessing punishment within the statutory range for the offense.

Appellant did not complain about the sentence either at the time it was imposed or in a 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 he did not file a motion for new trial.   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, 29.03(b) (West 2003 & Supp.2010).

We conclude the trial court did not abuse its discretion in assessing the fifteen-year 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.

DAVID L. BRIDGES JUSTICE