LARRY PAUL HOWARD v. THE STATE OF TEXAS (2011)

MEMORANDUM OPINION

Opinion By Justice Fillmore

Larry Paul Howard appeals from the adjudication of his guilt for the offense of aggravated sexual assault of a child.   In a single issue, Howard contends the trial court abused its discretion by sentencing him to twenty years' 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.

Howard waived a jury, pleaded guilty to aggravated sexual assault of a child younger than fourteen years of age, and pleaded true to having a prior felony conviction.   See Tex. Penal Code Ann. § 22.021(a)(1)(B)(iii) (West Supp.2010).   Pursuant to a plea agreement, the trial court deferred adjudicating guilt, placed Howard on five years' community supervision, and assessed a $1,000 fine.   The State later moved to adjudicate guilt, alleging Howard violated the terms of his community supervision.   In a hearing on the motion, Howard pleaded true to all of the allegations in the State's motion.   The trial court found the allegations true, adjudicated Howard guilty, and assessed punishment at twenty years' imprisonment.

In a single issue, Howard 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.   Howard asserts that because the violations of the terms of his community supervision were “minuscule” and he only had one year of the original probationary period remaining, the trial court should have continued his community supervision.   The State responds that Howard has failed to preserve his complaint for appellate review and, alternatively, the record does not show the sentence violates the objectives of the penal code.

Howard 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, Howard has not preserved his issue for our review.

Even if Howard 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 an habitual offender.   See Tex. Penal Code Ann. §§ 12.32, 12.42(c)(1), 22.021(e).

We conclude the trial court did not abuse its discretion in assessing the twenty-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 Howard's sole issue against him.

We affirm the trial court's judgment adjudicating guilt.

ROBERT M. FILLMORE JUSTICE