Michael Joseph Perrio a/k/a Michael Perrio a/k/a Michael J. Perrio v. The State of Texas--Appeal from 252nd District Court of Jefferson County

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In The Court of Appeals Ninth District of Texas at Beaumont ________________ NO. 09-11-00016-CR NO. 09-11-00017-CR ________________ MICHAEL JOSEPH PERRIO A/K/A MICHAEL PERRIO A/K/A MICHAEL J. PERRIO, Appellant V. THE STATE OF TEXAS, Appellee ________________________________________________________________________ On Appeal from the 252nd District Court Jefferson County, Texas Trial Cause Nos. 08-04266 and 09-05775 ________________________________________________________________________ MEMORANDUM OPINION Pursuant to a plea bargain, Michael Joseph Perrio, a/k/a Michael Perrio a/k/a Michael J. Perrio, pleaded guilty to sexual assault and delivery of a controlled substance and received eight years of deferred adjudication community supervision for each offense. The State later filed a motion to revoke Perrio s community supervision in each case. Perrio pleaded true to two alleged violations of his community supervision for sexual assault and pleaded true to one alleged violation of his community supervision for delivery of a controlled substance. The trial court found that Perrio violated the conditions of his community supervision, found Perrio guilty of the charged offenses, 1 sentenced Perrio to twenty years in prison for each offense, and ordered that Perrio s sentence for delivery of a controlled substance run consecutively to the sexual assault sentence. In two issues, Perrio contends that his sentences are constitutionally disproportionate and unreasonable.1 See U.S. Const. amend. VIII; see also Tex. Const. art. I, § 13. We affirm the trial court s judgment. The record does not show that Perrio presented his complaint to the trial court.2 See Tex. R. App. P. 33.1(a). Even had Perrio preserved his complaint for appellate review, his twenty-year sentence is within the statutorily authorized range of punishment for each of the charged offenses. See Tex. Penal Code Ann. §§ 12.33, 22.011(f) (West Supp. 2010); see also Tex. Health & Safety Code Ann. § 481.112(c) (West 2010).3 Generally, a sentence that is within the range of punishment established by the Legislature will not be disturbed on appeal. See Jackson v. State, 680 S.W.2d 809, 814 (Tex. Crim. App. 1984). A punishment that is within the statutory range for the offense is generally not excessive or unconstitutionally cruel or unusual under the Texas 1 Perrio also contends that the trial court unreasonabl[y] applied facts in violation of article 37.07 of the Code of Criminal Procedure, used unverifiable facts to sentence Perrio, and violated Perrio s due process and equal protection rights under the United States and Texas Constitutions. See Tex. Code Crim. Proc. Ann. art. 37.07 (West Supp. 2010); see also U.S. Const. amend. XIV; Tex. Const. art. I, §§ 3, 19. Perrio cites no applicable authority to support these arguments. See Tex. R. App. P. 38.1(i). 2 Perrio contends that he presented his complaint to the trial court in a postverdict motion[.] However, the record does not contain any such motion. 3 Because amended sections 12.33, 22.011, and 481.112 contain no material changes applicable to this case, we cite to the current version of each statute. See Tex. Penal Code Ann. §§ 12.33, 22.011(f) (West Supp. 2010); see also Tex. Health & Safety Code Ann. § 481.112(c) (West 2010). 2 Constitution or the United States Constitution. See Kirk v. State, 949 S.W.2d 769, 772 (Tex. App. Dallas 1997, pet. ref d); see also Jackson v. State, 989 S.W.2d 842, 846 (Tex. App. Texarkana 1999, no pet.). This includes sentences imposed at the statutory maximum. See Gavin v. State, No. 01-08-00881-CR, 2010 Tex. App. LEXIS 3862, at **20-21 (Tex. App. Houston [1st Dist.] May 20, 2010, no pet.) (not yet released for publication); see also Holley v. State, 167 S.W.3d 546, 549-50 (Tex. App. Houston [14th Dist.] 2005, pet. ref d). Moreover, the cumulation of sentences does not constitute cruel and unusual punishment. Stevens v. State, 667 S.W.2d 534, 538 (Tex. Crim. App. 1984). Even were Perrio s sentences grossly disproportionate, the record contains no evidence reflecting sentences imposed for similar offenses on criminals in Texas or other jurisdictions by which to make a comparison. 4 Jackson, 989 S.W.2d at 846. We overrule Perrio s two issues and affirm the trial court s judgment. AFFIRMED. ________________________________ STEVE McKEITHEN Chief Justice Submitted on May 5, 2011 Opinion Delivered May 18, 2011 Do Not Publish Before McKeithen, C.J., Kreger and Horton, JJ. 4 Perrio asks us to abate the appeal for a hearing to gather information regarding sentences imposed for similar offenses on criminals in Texas or other jurisdictions. Perrio cites no applicable authority to support this proposition. See Tex. R. App. P. 38.1(i). 3

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