DEXTER GRANT v. THE STATE OF TEXAS (2011)

MEMORANDUM OPINION

Opinion By Justice Lang

Dexter L. Grant appeals from the adjudication of his guilt for the offense of theft of property.   In a single issue, appellant contends the trial court abused its discretion by sentencing him to imprisonment.   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 theft of property valued at $100,000 or more but less than $200,000.   See Tex. Penal Code Ann. § 31.03(a), (e)(6) (West Supp.2010).   Appellant also pleaded true to having been previously convicted of two felony theft offenses.   Pursuant to a plea agreement, the trial court deferred adjudicating guilt and placed appellant on seven years' community supervision.   The State later moved to adjudicate guilt, alleging appellant violated the terms of his community supervision by failing to report and failing to notify his probation officer of a change of address.   In a hearing on the motion, appellant pleaded true to the violations.   The trial court found the violations true, adjudicated appellant guilty, and assessed punishment, enhanced by prior felony convictions, at twenty-five years' imprisonment.

Appellant contends the trial court abused its discretion and violated the objectives of the Texas Penal Code by sentencing him to imprisonment because the sentence is merely punitive and not necessary to prevent the recurrence of his criminal behavior.   Appellant asserts that because the technical violations were minuscule and he was on community supervision without medication for his “significant psychiatric illness,” he should be given a chance to complete community supervision and receive mental health treatment.   The State responds that appellant has failed to preserve his complaint for 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 his 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 his motion for new trial complained about his right “not to be put in jeopardy twice for the same offense,” and that the “verdict” shows bias.   Thus, appellant has not preserved his issue for our review.

Moreover, 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 the minimum punishment for a habitual offender.   See Tex. Penal Code Ann. §§ 12.42(d), 31.03(e)(6).

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 resolve appellant's sole issue against him.

DOUGLAS S. LANG JUSTICE