VERNON TURNER v. THE STATE OF TEXAS

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Court of Appeals of Texas, Dallas.

VERNON TURNER, Appellant v. THE STATE OF TEXAS, Appellee

No. 05-09-00718-CR

Decided: January 28, 2010

Before Justices Morris, O'Neill, and Fillmore

MEMORANDUM OPINION

Opinion By Justice O'Neill

Vernon Turner appeals from his conviction for aggravated robbery.   In a single issue, appellant contends the trial court abused its discretion by sentencing him to imprisonment.   We affirm the trial court's judgment.   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 47.4 because the law to be applied in the case is well settled.

Appellant waived a jury and pleaded guilty to aggravated robbery.   Pursuant to a plea agreement, the trial court deferred adjudicating guilt, placed appellant on ten years' community supervision, and assessed a $1500 fine.   The State later moved to adjudicate guilt, alleging appellant violated the terms 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 ten years' imprisonment.

In his sole point of error, appellant contends the trial court abused its discretion and violated the objectives of the Texas Penal Code by sentencing him to prison because the sentence was not necessary to prevent the recurrence of any criminal behavior.   Appellant asserts that because he diligently pursued work and regularly attended his drug treatment classes, the trial court should have considered rehabilitation in assessing punishment.   The State responds that appellant has failed to preserve his complaints for appellate review and, alternatively, the record does not support his claims.

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 that the verdict was contrary to the law and the evidence.   Thus, appellant has not preserved this issue for our review.

Even if appellant had preserved error, however, his arguments still fail.   As a general rule, punishment that is assessed within the statutory range for the 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 the offense.   See Tex. Penal Code Ann. §§ 12.32, 29.03(a) (Vernon 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 overrule appellant's sole point of error.

We affirm the trial court's judgment.

MICHAEL J. O'NEILL JUSTICE

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