Opinion
No. 05-09-00320-CR
Opinion Filed March 2, 2010. DO NOT PUBLISH. Tex. R. App. P. 47
On Appeal from the Criminal District Court No. 2, Dallas County, Texas, Trial Court Cause No. F04-01448-PI.
Before Justices RICHTER, LANG-MIERS, and MURPHY.
MEMORANDUM OPINION
William Eddie Moorman appeals from his conviction for burglary of a habitation. In a single point of error, appellant contends the trial court abused its discretion by sentencing him to thirty years' imprisonment. We affirm the trial court's judgment. The background of this case and the evidence admitted at trial are well known to the parties, and therefore we 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, pleaded guilty to burglary of a habitation, and pleaded true to two enhancement paragraphs. See Tex. Penal Code Ann. § 30.02(a)(1) (Vernon 2003). The trial court found the enhancement paragraphs true, but deferred adjudicating guilt and placed appellant on ten years' community supervision. The State later moved to adjudicate guilt, alleging appellant committed two new offenses: possession of cocaine and theft of property under $1500. Appellant pleaded true to the allegations in a hearing on the motion. The trial court found the allegations true, adjudicated appellant guilty, and assessed punishment at thirty years' imprisonment. Appellant contends the trial court abused its discretion and violated the objectives of the Texas Penal Code by sentencing him to prison because the sentence is not necessary to prevent a recurrence of his criminal behavior, and it does not take into consideration rehabilitation or appellant's need for drug treatment. The State responds that appellant has failed to preserve his complaint for appellate review and, alternatively, the trial court did not abuse its discretion in imposing a prison sentence. Appellant did not complain about the sentence either at the time it was imposed or in a 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 error to be preserved for appeal, record must show appellant made timely request, objection, or motion). After sentencing, appellant did not object to the sentence. Thus, appellant has not preserved this issue for our review. Even if appellant had preserved error, however, his arguments still fail. As a general rule, punishment that is assessed within the statutory range for the offense is not excessive or unconstitutionally cruel or unusual. Kirk v. State, 949 S.W.2d 769, 772 (Tex. App.-Dallas 1997, pet. ref'd). In this case, the trial court imposed punishment within the statutory range for an habitual offender with prior convictions. See Tex. Penal Code Ann. §§ 12.42(d), 30.02(d)(1). We conclude the trial court did not abuse its discretion in assessing the thirty-year sentence. See Jackson v. State, 680 S.W.2d 809, 814 (Tex. Crim. App. 1984) (as long as sentence is within proper range of punishment, it will not be disturbed on appeal). We overrule appellant's sole point of error. We affirm the trial court's judgment.