PAUL WAYNE LAWRENCE v. THE STATE OF TEXAS (2011)

MEMORANDUM OPINION

Opinion By Justice Moseley

Paul Wayne Lawrence appeals the adjudication of his guilt for aggravated sexual assault of a child.   In a single issue, appellant contends the trial court abused its discretion in sentencing him to imprisonment.   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 47.1 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.   See Tex. Penal Code Ann. § 22.021(a)(1)(B)(i) (West Supp.2010).   Pursuant to a plea agreement, the trial court deferred adjudicating guilt, placed appellant on eight years' community supervision, and assessed a $1,500 fine.   The State later moved to adjudicate guilt, alleging appellant violated the conditions of his community supervision.   Appellant pleaded true to the allegations in a hearing on the motion.   The trial court found the allegations true, adjudicated appellant guilty, and assessed punishment at forty years' imprisonment.

Appellant contends the trial court abused its discretion because it failed to articulate sufficient reasons for disregarding the State's punishment recommendation and his mitigating evidence.   Appellant argues that because the State recommended a twenty-year sentence, and he explained that his serious injuries sustained in an automobile accident prevented him from being physically able to complete the conditions of community supervision, the trial court should have granted him continued community supervision or assessed a lesser sentence.   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 sentencing appellant outside the State's recommendation.

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).   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 a first-degree felony offense.   See Tex. Penal Code Ann. §§ 12.32, 22.021(e).

We conclude the trial court did not abuse its discretion in assessing the forty-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 adjudicating guilt.

JIM MOSELEY JUSTICE