LARRY JOHNSON v. THE STATE OF TEXAS

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Court of Appeals of Texas, Dallas.

LARRY B. JOHNSON, Appellant v. THE STATE OF TEXAS, Appellee

No. 05-09-01030-CR

Decided: May 26, 2010

Before Justices Richter, Lang-Miers, and Myers

OPINION

Opinion By Justice Myers

Larry B. Johnson appeals his convictions for indecency with a child, aggravated sexual assault of a child, and sexual assault of a child.   In two issues, appellant contends the sentences are grossly disproportionate to the offenses and inappropriate to the offender in violation of the United States and Texas Constitutions.   See U.S. Const.   Amend.  VIII, XIV;  Tex. Const.  Art. I, § 13.   In each case, we affirm the trial court's judgment.

Background

Appellant waived a jury and pleaded nolo contendere to indecency with a child (cause nos.   05-09-01030-CR and 05-09-01031-CR), he pleaded nolo contendere to aggravated sexual assault of a child younger than fourteen (cause no.   05-09-01032-CR), and he pleaded guilty to sexual assault of a child (cause no.   05-09-01033-CR).  See Tex. Penal Code Ann. §§ 21.11(a), 22.021(a)(1)(B)(i), 22.011(a)(2)(A) (Vernon Supp.2009).   After hearing testimony from several witnesses, including the two victims and appellant, the trial court found appellant guilty in each case, then passed the cases for a presentence investigation report and sentencing.   After hearing additional testimony at the sentencing hearing, the trial court assessed punishment at twenty years' imprisonment and a $5000 fine for each indecency with a child conviction, thirty-five years' imprisonment and a $5000 fine for the aggravated sexual assault of a child conviction, and twenty years' imprisonment and a $10,000 fine for the sexual assault of a child conviction.

Disproportionate Sentence

Appellant contends the sentences are grossly disproportionate and excessive because he had no prior felony convictions or any other inappropriate conduct with minors, and several witnesses testified that appellant did not normally behave as he did when he committed the offenses.   Appellant asserts the trial court had several options other than incarceration, and he should have been given deferred adjudication probation in each case and ordered to attend counseling sessions.   The State responds that appellant failed to preserve his complaints for appellate review, and the sentences are not disproportionate to the offenses and circumstances.

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 “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 offenses.   See Tex. Penal Code Ann. §§ 12.32, 12.33, 21.11(d), 22.011(f), 22.021(e) (Vernon Supp.2009);  see also 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 two issues against him.

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

LANA MYERS JUSTICE

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