IRBY DON WIGINGTON v. THE STATE OF TEXAS (2011)

MEMORANDUM OPINION

Opinion By Chief Justice Wright

Irby Don Wigington appeals from the adjudications of his guilt for possession of cocaine and heroin.   In a single point of error, 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;  therefore, we 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 possession of cocaine in an amount of four grams or more but less than 200 grams and possession of less than one gram of heroin.   See Tex. Health & Safety Code Ann. § 481.115(a), (b), (d) (West 2010).   Appellant also pleaded true to two enhancement paragraphs contained in each indictment.   Pursuant to plea agreements, the trial court deferred adjudicating guilt, placed appellant on ten years' community supervision, and assessed a $2,500 fine in each case.   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 motions.   The trial court found the allegations true, adjudicated appellant guilty, and assessed punishment at twenty-five years' imprisonment in the cocaine case and ten years' imprisonment in the heroin case.

Appellant contends the trial court abused its discretion and violated the objectives of the Texas Penal Code by sentencing him to the twenty-five and ten-year prison terms because the sentences are merely punitive and do not address his recently-diagnosed bipolar disorder.   Appellant asserts the trial court should have exercised its discretion to continue him on community supervision so he could continue receiving the proper treatment.

Appellant did not complain about the sentences either at the time they were imposed or in his 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).   After sentencing, appellant did not object to the sentences, and his motions for new trial complained that the “verdicts” were “contrary to the law and evidence.”   Thus, appellant has not preserved this issue for our review.

In addition, in the cocaine case, the trial court imposed the minimum punishment for an habitual offender with two prior felony convictions.   In the heroin case, the judge imposed punishment within the statutory range.   See Tex. Penal Code Ann. §§ 12.33, 12.42(a)(2), (d) (West 2011);  Tex. Health & Safety Code Ann. § 481.115(b), (d) (West 2010).   We conclude the trial court did not abuse its discretion by assessing the twenty-five and ten-year sentences.   See Jackson v. State, 680 S.W.2d 809, 814 (Tex.Crim.App.1984) (as long as a sentence is within proper range of punishment it will not be disturbed on appeal).   We overrule appellant's sole point of error.

We affirm the trial court's judgments.

CAROLYN WRIGHT CHIEF JUSTICE