CHRISTOPHER ROMERO PAYNE, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRM and Opinion Filed October 25, 2010
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-10-00215-CR
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CHRISTOPHER ROMERO PAYNE, Appellant
V.
THE STATE OF TEXAS, Appellee
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On Appeal from the Criminal District Court No. 2
Dallas County, Texas
Trial Court Cause No. F04-73967-JI
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MEMORANDUM OPINION
Before Justices O'Neill, Richter, and Lang-Miers
Opinion By Justice Richter
        Christopher Romero Payne appeals from the adjudication of his guilt for aggravated robbery with a deadly weapon. In a single issue, appellant contends the trial court abused its discretion in sentencing him to imprisonment. We affirm. The background of this 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 aggravated robbery with a deadly weapon, a knife. See Tex. Penal Code Ann. §§ 29.02(a), 29.03(a) (West 2003). Pursuant to a plea agreement, the trial court deferred adjudicating guilt, placed appellant on ten years' community supervision, and assessed a $1000 fine. The State later moved to adjudicate guilt, alleging appellant violated the terms of his community supervision. At a hearing on the motion, appellant pleaded true to the allegations. The trial court found the allegations true, adjudicated appellant guilty, and assessed punishment at forty years' imprisonment.
        Appellant contends the trial court abused its discretion and violated the rehabilitative objectives of the Texas Penal Code by sentencing him to forty-years' imprisonment because the sentence is not necessary to prevent the recurrence of his criminal behavior. Appellant asserts he could not comply with the terms of community supervision because he was already on parole, and he was sent to a halfway house in Fort Worth. The State responds that appellant has failed to preserve his complaint for appellate review and, alternatively, the trial court did not abuse its discretion in sentencing appellant.
        Appellant did not complain about the sentence either at the time it was imposed or in his 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). After sentencing, appellant did not object to the sentence, and his motion 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 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 a habitual offender with more than one prior felony conviction. See Tex. Penal Code Ann. § 12.42(d) (West Supp. 2010).         We conclude the trial court did not abuse its discretion in assessing the forty-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 adjudicating guilt.
 
 
 
                                                          
                                                          MARTIN RICHTER
                                                          JUSTICE
Do Not Publish
Tex. R. App. P. 47
100215F.U05