IRINEO RANGEL, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRM; Opinion issued May 5, 2010
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-09-00698-CR
............................
IRINEO RANGEL, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the 204th Judicial District Court
Dallas County, Texas
Trial Court Cause No. F04-51635-HQ
.............................................................
MEMORANDUM OPINION
Before Justices O'Neill, Francis, and Murphy
Opinion By Justice Francis
        Irineo Rangel waived a jury and pleaded guilty to intoxication assault. After finding appellant guilty, the trial court assessed punishment at ten years in prison. In two points of error, appellant contends the trial court violated his due process rights by imposing a predetermined sentence and by refusing to consider the full range of punishment. 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 contends the trial court imposed a predetermined sentence because the trial judge only considered the maximum prison term. Specifically, appellant points to comments made by the trial judge that make it clear he only considered the maximum available punishment and refused to consider probation based on emotional reasons personal to the judge as opposed to the facts of the case. The State responds that appellant has failed to preserve his complaints for appellate review and, alternatively, the record reflects the trial court considered all of the evidence and entire punishment range before assessing the sentence.
        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, record must show appellant made timely request, objection, or motion). After sentencing, appellant did not object to the sentence, and he did not file a motion for new trial. Thus, he 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 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. §§ 12.34, 49.07(c) (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 this case, the complained of comments do not reflect bias, partiality, or that the trial judge did not consider the full range of punishment. During the April 13, 2007 plea hearing, the trial judge heard testimony from appellant in which appellant explained that in May 2004, he was driving while intoxicated and hit a tree at a high rate of speed. A friend who was in the vehicle with him was paralyzed as a result of that accident. Appellant said he had a blood alcohol concentration of 0.61 at the time of the accident. Appellant told the trial judge he offered his friend some assistance, but his friend said he did not want anything from appellant. The trial judge responded that appellant's friend told a probation officer that in the three years since the accident, appellant had never apologized or offered to help him financially with his medical bills. During further testimony, appellant told the trial judge he “caught a couple of misdemeanor cases” after that accident, including a 2005 Denton County DWI after having an accident, unlawfully carrying a weapon while out on bond, and possession of marijuana in 2006. After questions from the trial judge concerning what appellant had done to stop drinking after paralyzing his friend, appellant admitted he had done nothing to try to stop drinking after having that first accident.
        We conclude nothing shows the trial court did not consider probation and the full range of punishment before imposing the ten-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 two points of error.
        We affirm the trial court's judgment.
 
 
                                                          
                                                          MOLLY FRANCIS
                                                          JUSTICE
 
Do Not Publish
Tex. R. App. P. 47
090698F.U05