Cooper, Saulo v. The State of Texas--Appeal from 183rd District Court of Harris County

Affirmed and Memorandum Opinion filed October 20, 2005.

In The

Fourteenth Court of Appeals

____________

NO. 14-04-00758-CR

____________

SAULO COOPER, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 183rd District Court

Harris County, Texas

Trial Court Cause No. 779,782

M E M O R A N D U M O P I N I O N

Appellant pled guilty to the offense of aggravated robbery without an agreed recommendation as to sentencing. On November 9, 1998, the trial court entered an order deferring adjudication of guilt and placing appellant on ten years of community supervision. The State subsequently moved to adjudicate. On July 1, 2004, the trial court adjudicated appellant guilty of the offense of aggravated robbery and sentenced him to twelve years= imprisonment in the Texas Department of Criminal Justice, Institutional Division. On appeal, appellant raises one issue. We affirm.

Appellant claims the trial court abused its discretion in sentencing appellant to twelve years in prison because this violates the constitutional prohibition against cruel and unusual punishment. The state responds that appellant has waived error because no objection was raised in the trial court.

The Court of Criminal Appeals has held that, if the contention of cruel and unusual punishment is not raised in the trial court, any error is not preserved for review. Schneider v. State, 645 S.W.2d 463, 466 (Tex. Crim. App. 1983). The record shows that no objection was made in the trial court challenging the sentence on the ground of cruel and unusual punishment. Accordingly, appellant did not preserve error for review.

In any event, the punishment appellant received falls within the range of punishment for the offense of aggravated robbery, which is a first degree felony. The punishment range for a first degree felony includes imprisonment for life or for a term not less than five nor more than ninety-nine years. Tex. Pen. Code Ann. ' 12.32(a) (Vernon 2003). In Texas, where the punishment assessed by the judge or the jury was within statutorily prescribed limits, it is not cruel and unusual punishment. McNew v. State, 608 S.W.2d 166, 174 (Tex. Crim. App. 1978)(citing Samuel v. State, 477 S.W.2d 611, 614 (Tex. Crim. App.1972); Cooks v. State, 5 S.W.3d 292, 298 (Tex. App.BHouston [14th Dist.] 1999, no pet.). Thus, we find no merit in appellant=s sole issue.

The judgment of the trial court is affirmed.

PER CURIAM

Judgment rendered and Memorandum Opinion filed October 20, 2005.

Panel consists of Justices Hudson, Frost, and Seymore.

Do Not Publish C Tex. R. App. P. 47.2(b).