Opinion
No. 05-12-00352-CR
11-28-2012
RODRIGUS GERARD MONETTE, Appellant v. THE STATE OF TEXAS, Appellee
AFFIRM; Opinion issued November 28, 2012.
On Appeal from the 283rd Judicial District Court
Dallas County, Texas
Trial Court Cause No. F11-52092-T
MEMORANDUM OPINION
Before Justices Richter, Lang-Miers, and Myers
Opinion by Justice Richter
Rodrigus Gerard Monette appeals from the revocation of his community supervision. In two issues, appellant contends the sentence constitutes cruel and unusual punishment, in violation of the United States and Texas Constitutions. We affirm the trial court's judgment. The background of the case and the evidence admitted at trial are well known to the parties, and we therefore limit recitation of the facts. We issue this memorandum opinion pursuant to Texas Rule of Appellate Procedure 47.4 because the law to be applied in the case is well settled.
Appellant waived a jury and pleaded guilty to possession of marijuana in an amount of five pounds or less but more than four ounces. See HEALTH & SAFETY CODE ANN. § 481.121(a), (b)(3) (West 2010), Pursuant to a plea agreement, the trial court assessed punishment at two years' confinement in a state jail, probated for two years, and a $1,500 fine. The State later moved to revoke community supervision, alleging appellant violated four conditions of community supervision. In a hearing on the motion, appellant pleaded not true to violating one condition, and pleaded true to violating three conditions. The trial court found all of the allegations true, revoked appellant's community supervision, and assessed punishment at eighteen months' confinement in a state jail.
Appellant contends the eighteen-month sentence is cruel and unusual punishment, in violation of the Eighth and Fourteenth Amendments to the United State Constitution and Article I, Section Thirteen of the Texas Constitution. See U.S. CONST, amend. VIII, XIV; TEX. CONST. art. I, § 13. Appellant asserts the eighteen-month sentence is "clearly disproportionate" to the offense. The State responds that appellant has failed to preserve his complaints for appellate review and, alternatively, the sentence is not cruel, unusual, or disproportionate to the crime.
Appellant did not complain about the sentence either at the time it was imposed or in his motion for new trial. See TEX. R. APP. P. 33.1(a)(1); Castaneda v. State, 135 s.W.3d 719, 723 (Tex. App.—Dallas 2003, no pet.) (for appeal to be preserved, record must show appellant made timely request, objection, or motion). In his motion for new trial, appellant contended the "verdict is contrary to the law and evidence." Thus, he has not preserved this issue for our review.
Moreover, we note, and appellant acknowledges in his brief, that the punishment is within the statutory range for the state jail felony offense. See HEALTH & SAFETY CODE ANN. § 481.121(b)(3); TEX. PENAL CODE ANN. § 12.35(a) (West 2011). As a general rule, punishment that is assessed within the statutory range for an offense is neither excessive nor unconstitutionally cruel or unusual. Kirk v. State, 949 S.W.2d 769, 772 (Tex, App.—Dallas 1997, pet. ref'd); see also Jackson v. State, 680 S.W.2d 809, 814 (Tex. Crim, App. 1984) (as long as sentence within proper range of punishment, it will not be disturbed on appeal). We resolve appellant's two issues against him.
We affirm the trial court's judgment.
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MARTIN RICHTER
JUSTICE
Do Not Publish
TEX. R. APP. P. 47
120352F.U05
JUDGMENT
RODRIGUS GERARD MONETTE, Appellant No.05-12-00352-CR V. THE STATE OF TEXAS, Appellee
Appeal from the 283rd Judicial District
Court of Dallas County, Texas (Tr.Ct.No.
F11-52092-T).
Opinion delivered by Justice Richter,
Justices Lang-Miers and Myers
participating.
Based on the Court's opinion of this date, the trial court's judgment is AFFIRMED.
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MARTIN RICHTER
JUSTICE