MISTEY CHERIE SAMUELS v. THE STATE OF TEXAS (2010)

MEMORANDUM OPINION

Opinion By Justice Francis

Mistey Cherie Samuels waived a jury and pleaded guilty to prostitution, enhanced with three prior convictions for prostitution.   The trial court assessed punishment at eighteen months in a state jail facility.   In a single issue, appellant contends the trial court abused its discretion in sentencing her to jail rather than probation.   We affirm.   The background of the 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 her to eighteen months in state jail because the sentence is not necessary to prevent the recurrence of her criminal behavior.   Appellant asserts that because she took responsibility for her offenses, the trial court should have considered probation.   The State responds that appellant has failed to preserve her complaint for appellate review and, alternatively, the record does not show the sentence violates the objectives of the penal code.

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 she 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, her 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. §§ 12.35(a), 43.02(c) (West Supp.2010).

We conclude the trial court did not abuse its discretion in assessing the eighteen-month 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 her.

We affirm the trial court's judgment.

MOLLY FRANCIS JUSTICE