HOWARD DEAN HARRIS, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRM; Opinion issued June 8, 2010
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-09-00105-CR
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HOWARD DEAN HARRIS, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the 291st Judicial District Court
Dallas County, Texas
Trial Court Cause No. F07-51687-HU
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MEMORANDUM OPINION
Before Justices Morris, Moseley, and Lang
Opinion By Justice Morris
        In this case, Howard Dean Harris appeals his conviction for possession of cocaine. In a single issue, appellant contends the trial court abused its discretion by sentencing him to imprisonment. We affirm. 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 possession of cocaine in an amount of less than one gram in a drug-free zone. See Tex. Health & Safety Code Ann. §§ 481.115(a), 481.134(d)(1) (Vernon Supp. 2009). After finding one enhancement paragraph true, the trial court assessed punishment at five years' imprisonment, probated for three years, and a $1500 fine. The State later moved to revoke appellant's community supervision, alleging appellant violated the conditions of his community supervision. Appellant pleaded true to the allegations in a hearing on the motion. The trial court found the allegations true, revoked appellant's community supervision, and assessed punishment at three years' imprisonment and a $1500 fine.
        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 prison because the sentence is not necessary to prevent the recurrence of his criminal behavior. Appellant asserts that because he has a chronic illness and he has encountered difficulty with the law only after the death of his mother, the trial court should have continued him on probation.
        We first note that appellant did not complain about the sentence either at the time it was imposed or in a 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). Even if error is preserved, however, appellant's argument is without merit.
        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. § 12.33 (Vernon 2003); Tex. Health & Safety Code Ann. § 481.134(d)(1). The record before us does not show that the objectives of the penal code were not observed. We conclude the trial court did not abuse its discretion in assessing the three-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 resolve appellant's sole issue against him.
        We affirm the trial court's judgment.
 
 
                                                          
                                                          JOSEPH B. MORRIS
                                                          JUSTICE
 
Do Not Publish
Tex. R. App. P. 47
090105F.U05