Bobby Ray Butler v. The State of Texas--Appeal from 124th District Court of Gregg County

In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

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No. 06-03-00102-CR

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BOBBY RAY BUTLER, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 124th Judicial District Court

Gregg County, Texas

Trial Court No. 27529-B

Before Morriss, C.J., Ross and Carter, JJ.

Memorandum Opinion by Chief Justice Morriss

MEMORANDUM OPINION

On August 23, 2000, Bobby Ray Butler pled guilty to two counts of aggravated sexual assault and two counts of sexual assault. See Tex. Pen. Code Ann. 22.011(a)(2)(A, B) (child victim) & 22.021(a)(1)(B)(i, ii) (child victim) (Vernon 2003). After a punishment trial before a jury, Butler was sentenced to five years' confinement in the Institutional Division of the Texas Department of Corrections for the two counts of aggravated sexual assault and two years' confinement for the two counts of sexual assault, but further found Butler had never been convicted of a felony and recommended he be placed on community supervision. See Tex. Code Crim. Proc. Ann. art. 42.12, 4 (Vernon Supp. 2003) (jury may grant defendant adjudicated community supervision for aggravated sexual assault). The trial court sentenced Butler in accordance with the jury's verdict, placing Butler on community supervision for a period of ten years.

On February 20, 2003, the State filed a motion to adjudicate Butler's guilt. The trial court heard evidence and argument on the State's motion on March 12, 2003. At the hearing, the trial court determined the substance of the State's motion was more properly considered to be an application for revocation of Butler's community supervision, and treated the State's motion accordingly. Butler pled "true" to violating the terms and conditions of his community supervision, including using marihuana. Thereafter, the trial court revoked Butler's community supervision and sentenced him to the original term of confinement on each count of the indictment, as recommended by the jury at trial.

On appeal, Butler contends his sentence is disproportionately excessive given the facts of his offense. Butler did not present this issue to the trial court or present evidence that would permit a comparison of sentences for similar crimes in this or other jurisdictions. Accordingly, nothing has been preserved for our review on appeal. See Tex. R. App. P. 33.1(a); Alberto v. State, 100 S.W.3d 528, 530 (Tex. App. Texarkana 2003, no pet.).

We affirm the trial court's judgment.

Josh R. Morriss, III

Chief Justice

Date Submitted: November 10, 2003

Date Decided: November 12, 2003

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