JACKIE HARLAN VENN v. THE STATE OF TEXAS (2010)

MEMORANDUM OPINION

Opinion By Justice Francis

Jackie Harlan Venn appeals his conviction for aggravated sexual assault of a child.   In a single point of error, appellant contends the trial court abused its discretion in assessing an excessive sentence.   We affirm.   The background of the case and the evidence admitted at trial are well known to the parties, and we therefore 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 waived a jury and pleaded guilty to aggravated sexual assault of a child younger than fourteen years of age.   Appellant also pleaded true to two enhancement paragraphs.   After finding appellant guilty and the enhancement paragraphs true, the trial court assessed punishment at twenty-five years imprisonment.

In a single point of error, appellant contends the twenty-five-year sentence violates the cruel and unusual punishment prohibition and his due process and due course of law rights under the United States and Texas Constitutions.   See U.S. Const.  Amend.  VIII, XIVV;  Tex. Const.   Art. I, § 19.   Appellant asserts the sentence for his “consensual sexual relations with a child” is excessive and disproportionate.   The State responds that appellant has failed to preserve his complaint for appellate review and, alternatively, the trial court did not abuse its discretion in imposing the twenty-five-year sentence.

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 neither objected to the sentence nor filed 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 that is not only within the statutory range for the offense, but also the minimum statutory punishment for a habitual offender.   See Tex. Penal Code Ann. §§ 12.32, 12.42(d), 22.021(e).

We conclude the trial court did not abuse its discretion in assessing the twenty-five-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 overrule appellant's sole issue on appeal.

We affirm the trial court's judgment.

MOLLY FRANCIS JUSTICE