DANNIE LEE JETER v. THE STATE OF TEXAS--Appeal from 24th District Court of Calhoun County

NUMBER 13-05-069-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG

DANNIE LEE JETER, Appellant,

 
v.

THE STATE OF TEXAS, Appellee.

On appeal from the 24th District Court of Calhoun County, Texas.
MEMORANDUM OPINION
Before Justices Hinojosa, Ya ez, and Garza
Memorandum Opinion by Justice Ya ez

By a single issue, appellant, Dannie Lee Jeter, appeals the sentence imposed by the trial court after his adjudication for the first-degree felony offense of aggravated robbery of an elderly person. (1) Appellant contends the trial court's sentence of forty years' imprisonment and a $1,000 fine is cruel and unusual. We affirm.

Background

Purusant to a plea bargain agreement, on September 10, 2002, appellant pleaded guilty to aggravated robbery of an elderly person. The trial court deferred adjudication, imposed a fine of $1,000, and placed appellant on deferred adjudication community supervision for ten years.

On April 13, 2004, the State filed a petition to adjudicate, alleging appellant violated the terms of his community supervision by committing burglary of a building (2) and violating his curfew. At a hearing on January 4, 2005, appellant pleaded "true" to the allegations in the State's motion. The trial court adjudicated him guilty, revoked his community supervision, and sentenced him to forty years' imprisonment and a $1,000 fine.

In his sole issue, appellant contends that his sentence constitutes cruel and unusual punishment. The State contends (1) because appellant failed to object to his sentence, he failed to preserve the issue for review, and (2) appellant's sentence was within the range of punishment allowable by law and therefore does not constitute cruel and unusual punishment.

Standard of Review and Applicable Law

We review a sentence imposed by the trial court for abuse of discretion. (3) Article 42.12, section 5(b) of the code of criminal procedure provides that no appeal may be taken from a trial court's determination to proceed with adjudication of guilt. (4) However, an appeal may be taken to challenge the assessment of punishment and assessment of sentence. (5) It is a general rule that as long as a sentence is within the proper range of punishment, it will not be disturbed on appeal. (6)

To preserve a complaint of disproportionate sentencing, an appellant must object or otherwise raise error in the trial court. (7)

Analysis

Before we can address appellant's claim that his sentence constitutes cruel and unusual punishment, it must be preserved for our review. Here, the record reflects that after the trial court assessed his sentence, appellant did not object. (8) We conclude appellant failed to preserve the issue for our review. (9)

Moreover, the sentence imposed by the trial court was within the statutorily permissible range. (10) Accordingly, we hold that the trial court did not abuse its discretion in imposing the sentence. (11)

We overrule appellant's sole issue and affirm the trial court's judgment.

 

LINDA REYNA YA EZ,

Justice

 

Do not publish. Tex. R. App. P. 47.2(b).

 

Memorandum opinion delivered and filed

this the 10th day of August, 2006.

 

1. See Tex. Pen. Code Ann. 29.03(a)(3)(A), (b) (Vernon 2003).

2. See id. 30.02.

3. Jackson v. State, 680 S.W.2d 809, 814 (Tex. Crim. App. 1984).

4. Tex. Code Crim. Proc. Ann. art. 42.12, 5(b) (Vernon Supp. 2005); see also Connolly v. State, 983 S.W.2d 738, 741 (Tex. Crim. App. 1999); Olowosuko v. State, 826 S.W.2d 940, 942 (Tex. Crim. App. 1992).

5. See Tex. Code Crim. Proc. Ann. art. 42.12, 5(b) (Vernon Supp. 2005); Olowosuko, 826 S.W.2d at 942.

6. Jackson, 680 S.W.2d at 814.

7. Jackson v. State, 989 S.W.2d 842, 844 (Tex. App.-Texarkana 1999, no pet.) (citing cases finding waiver of "cruel and unusual punishment" claims); Quintana v. State, 777 S.W.2d 474, 479 (Tex. App.-Corpus Christi 1989, pet. ref'd).

8. The record shows that the trial court asked appellant, "[d]o you know any legal reason why sentence should not be pronounced in this case at this time?" Appellant responded "No."

9. See Tex. R. App. P. 33.1; Jackson, 989 S.W.2d at 844.

10. See Tex. Pen. Code Ann. 12.32 (Vernon 2003).

11. See Jackson, 680 S.W.2d at 814.