Reset A A Font size: Print

Court of Appeals of Texas, Dallas.


No. 05-09-00462-CR No. 05-09-00467-CR

Decided: January 29, 2010

Before Justices Moseley, Richter, and Francis


Opinion By Justice Richter

Marquise Marcellus Lewis appeals ten convictions for aggravated assault with a deadly weapon.   In a single point of error, appellant contends the trial court erred in imposing a predetermined sentence in each case.   We affirm the trial court's judgments.   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 ten aggravated assault with a deadly weapon, a firearm, offenses.   Pursuant to plea agreements, the trial court placed appellant on ten years' community supervision in each case.   The State later moved to adjudicate, alleging appellant violated two conditions of community supervision.   Appellant pleaded not true to the allegations in a hearing on the motions.   The trial court found one allegation not true and one allegation true, adjudicated appellant guilty, and assessed punishment at twenty years' imprisonment in each case.

Appellant contends the trial court imposed predetermined sentences because the trial judge only considered the maximum prison term.   Specifically, appellant points to comments made in a prior adjudication proceeding in which the judge denied the State's motion to adjudicate and continued appellant on community supervision.   In that proceeding, the trial judge told appellant he would “go to the pen for about 20 years” if he violated the conditions of his community supervision.   Appellant argues that because he had successfully completed other portions of his community supervision, but the trial judge sentenced him to the maximum prison term for only a “technical” violation, it proves a predetermined sentence was assessed in each case.   The State responds that appellant has failed to preserve his complaints for appellate review and, alternatively, the record does not support appellant's claims that the trial court assessed predetermined sentences.

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, record must show appellant made 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 the evidence.   Thus, he 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 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. §§ 12.33, 22.02(a)(2) (Vernon 2003 & Supp.2009).

Moreover, absent a clear showing of bias, a trial court's actions will be presumed to have been correct.  Brumit v. State, 206 S.W.3d 639, 645 (Tex.Crim.App.2006).   In these cases, the complained of comments do not reflect bias, partiality, or that the trial judge did not consider the full range of punishment.   After hearing testimony from four witnesses, including appellant and his mother, the trial judge adjudicated appellant guilty in each case, then held a punishment hearing.   Before the trial judge imposed the sentences, he heard testimony from four witnesses.

We conclude the trial court did not abuse its discretion in assessing the twelve-year sentence.   See Jackson v. State, 680 S.W.2d 809, 814 (Tex.Crim.App.1984) (as long as 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 judgment in each case.


Copied to clipboard