BEVERLY PATRICE SHINN v. THE STATE OF TEXAS (2011)

MEMORANDUM OPINION

Opinion By Justice Lang–Miers

Beverly Patrice Shinn waived a jury and pleaded guilty to aggravated robbery of an elderly person.   See Tex. Penal Code Ann. § 29.03(a)(3)(A) (West 2003).   After finding appellant guilty, the trial court assessed punishment at ten years' imprisonment.   In a single issue, appellant contends the trial court abused its discretion by sentencing her to ten years' imprisonment.   We affirm the trial court's judgment.   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 contends the trial court abused its discretion and violated the objectives of the Texas Penal Code by sentencing her to imprisonment because the sentence is merely punitive and not necessary to prevent the recurrence of her criminal behavior.   Appellant asserts that because she has longstanding drug addictions and was diagnosed as bipolar, she should have received “rehabilitative probation” rather than a prison sentence.   The State responds that appellant has failed to preserve her 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 her 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 her motion for new trial complained that the “verdict” was “contrary to the law and evidence.”   Thus, appellant has not preserved her 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 punishment at the lower end of the statutory range.   See Tex. Penal Code Ann. § 12.32 (West Supp.2010), § 29.03(b) (West 2003).

We conclude the trial court did not abuse its discretion in assessing the ten-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 her.

We affirm the trial court's judgment.

ELIZABETH LANG–MIERS JUSTICE