DAVID LUVERNE MCALISTER v. THE STATE OF TEXAS (2011)

MEMORANDUM OPINION

Opinion By Justice Lang-Miers

David Luverne McAlister appeals from the adjudication of his guilt for three aggravated sexual assault of a child offenses.   In a single issue, appellant contends the trial court abused its discretion by sentencing him to imprisonment in each case.   We affirm.   The background of the cases 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 cases is well settled.

Appellant waived a jury and pleaded guilty to three offenses of aggravated sexual assault of a child younger than fourteen years of age.   See Tex. Penal Code Ann. § 22.021(a)(1)(B)(i) & (iii) (West Supp.2010).   The trial court deferred adjudication of guilt, placed appellant on nine and ten years' community supervision, and assessed $2,000 fines in two of the cases.   The State later moved to adjudicate guilt, alleging appellant violated the terms of his community supervision.   In a hearing on the motion, appellant pleaded true to the allegations in the State's motions.   The trial court found the allegations true, adjudicated appellant guilty, and assessed punishment at fifteen years' imprisonment in each case.

Appellant contends the trial court abused its discretion and violated the objectives of the Texas Penal Code by sentencing him to fifteen-year prison terms because the sentences are not necessary to prevent the recurrence of his criminal behavior.   Appellant asserts that because the violations-accessing social networking websites and viewing content on news websites-were minuscule, the trial court should have considered rehabilitation in assessing punishment and continued his community supervision.   The State responds that appellant has failed to preserve his complaint for appellate review and, alternatively, the records do not support appellant's claims.

Appellant did not complain about the sentences either at the time they were imposed or in 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).   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 an 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 offenses.   See Tex. Penal Code Ann. §§ 12.32, 22.021(e).

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 appellant's sole issue against him.

We affirm the trial court's judgments.

ELIZABETH LANG-MIERS JUSTICE