KENNETH EARL COBBIN v. THE STATE OF TEXAS

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Court of Appeals of Texas, Dallas.

KENNETH EARL COBBIN, Appellant v. THE STATE OF TEXAS, Appellee

No. 05-09-01303-CR

Decided: May 27, 2010

Before Justices O'Neill, Francis, and Murphy

MEMORANDUM OPINION

Opinion By Justice Murphy

Kenneth Earl Cobbin appeals his convictions for violation of a protective order.   In a single issue, appellant contends the trial court abused its discretion by sentencing him to imprisonment 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 two offenses of violation of a protective order.   See Tex. Penal Code Ann. § 25.07(a) (Vernon Supp.2009).   Appellant also pleaded true to one enhancement paragraph contained in each indictment.   Pursuant to plea agreements, the trial court deferred adjudicating guilt, placed appellant on two years' community supervision, and assessed $500 fines in each case.   The State later moved to adjudicate guilt in each case, alleging appellant violated six conditions of his community supervision.   In a hearing on the motions, appellant pleaded true to four of the allegations and not true to two allegations.   The trial court found four of the allegations true, adjudicated appellant guilty, and assessed punishment at ten years' imprisonment in each case.

In his sole issue on appeal, appellant 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 not necessary to prevent the recurrence of his criminal behavior.   Appellant asserts there is nothing in the record to suggest he is beyond redemption or that he could not be rehabilitated, he was working in a productive job with the City of Dallas, and he specifically asked the trial court to continue him on probation.   The State responds that appellant has failed to preserve his complaint for appellate review and, alternatively, the record does not show that the sentences violated the objectives of the penal code.

Appellant did not complain about the sentences either at the time they were imposed or in 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 he did not file a motion for new trial in either case.   Thus, appellant has not preserved this issue for our review.

Even if appellant had preserved error, however, his argument still fails.   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 offenses.   See Tex. Penal Code Ann. §§ 12.33, 25.07(g) (Vernon Supp.2009).

We conclude the trial court did not abuse its discretion in assessing the ten-year sentences.   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 him.

In each case, we affirm the trial court's judgment.

MARY MURPHY JUSTICE

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