Davis v. State

Full title: TERRY WAYNE DAVIS JR. A/K/A TERRY WAYNE DAVIS, Appellant v. THE STATE OF…

Court: Court of Appeals of Texas, Second District, Fort Worth

Date published: Mar 17, 2005

No. 2-04-132-CR (Tex. App. Mar. 17, 2005)

Opinion

No. 2-04-132-CR

Delivered: March 17, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.2(b).

Appeal from the 372nd District Court of Tarrant County.

Panel F: LIVINGSTON, WALKER, and McCOY, JJ.

MEMORANDUM OPINION ¹

1 See Tex.R.App.P. 47.4.

PER CURIAM.

In a single point on appeal, appellant Terry Wayne Davis, Jr. a/k/a Terry Wayne Davis contends that the trial court abused its discretion in assessing his punishment for aggravated sexual assault of a person sixty-five years of age or older and aggravated robbery causing bodily injury to an elderly person at sixty years' confinement for each offense. We affirm. Appellant recognizes that a sentence within the statutorily permissible range is within the trial court's discretion² but argues that this rule is "tempered" by the following passage from Jackson v. State:

In our review of a trial judge's determination of the appropriate punishment in any given case a great deal of discretion is allowed the sentencing judge. . . . It is also the general rule that as long as a sentence is within the proper range of punishment it will not be disturbed on appeal. However, in all of the cases dealing with review in this area there was at least some evidence or facts available to the court and upon which the court could have relied in assessing punishment.

680 S.W.2d 809, 814 (Tex.Crim.App. 1984) (citations omitted).³ According to appellant, Jackson, therefore, "intimates that a trial court judge may abuse his discretion in sentencing even if his punishment determination falls within the range of punishment prescribed for a particular offense." Appellant did not preserve this issue for review. As a general rule, an appellant may not assert error pertaining to his sentence or punishment where he failed to object or otherwise raise the error in the trial court. Mercado v. State, 718 S.W.2d 291, 296 (Tex.Crim.App. 1986); Smith v. State, 10 S.W.3d 48, 49 (Tex.App.-Texarkana 1999, no pet.) (holding that appellant did not preserve error for review when he failed to raise an objection to the sentence imposed) ; Rodriguez v. State, 917 S.W.2d 90, 92 (Tex.App.-Amarillo 1996, pet. ref'd) (stating that error was not preserved for review because appellant failed to raise the severity of his sentence when punishment was assessed and failed to file a motion for new trial). Here, appellant failed to object when the trial judge imposed the two sixty-year sentences. He filed a timely motion for new trial that was overruled by operation of law,⁴ but there is no evidence in the record that it was ever presented to the trial court. See TEX. R. APP. P. 21.6; Hernandez v. State, 84 S.W.3d 26, 32-33 (Tex.App.-Texarkana 2002, pet. ref'd). Further, the motion for new trial states only that "[t]he verdict is contrary to the law and the evidence." This does not comport with appellant's contention on appeal. Accordingly, appellant has waived any error on this issue. See Heidelberg v. State, 144 S.W.3d 535, 537 (Tex.Crim.App. 2004); Bell v. State, 938 S.W.2d 35, 54 (Tex.Crim.App. 1996), cert. denied, 522 U.S. 827 (1997); Rezac v. State, 782 S.W.2d 869, 870 (Tex.Crim.App. 1990).⁵ We overrule appellant's sole point and affirm the trial court's judgment.

2 See Tamminen v. State, 653 S.W.2d 799, 803 (Tex.Crim.App. 1983).

3 In Jackson, the judge who presided over guilt-innocence died before he could conduct a punishment hearing. Jackson, 680 S.W.2d at 811. The judge who presided over punishment did not read a transcript of guilt-innocence, and neither the State nor the appellant introduced any evidence. Id. In assessing punishment, the new judge relied solely on a presentencing investigation report, which at the time constituted error. Id. at 811-14.

4 See Tex.R.App.P. 21.4(a), 21.8(c).

5 Appellant does not contend that his sentence is void. See Heath v. State, 817 S.W.2d 335, 336 (Tex.Crim.App. 1991) (holding that defect rendering a sentence void may be raised at any time), disavowed on other grounds by Ex parte Williams, 65 S.W.3d 656 (Tex.Crim.App. 2001).