Opinion
No. 05-11-00390-CR No. 05-11-00391-CR
03-02-2012
RICARDO HELY RIVAS, Appellant v. THE STATE OF TEXAS, Appellee
AFFIRM; Opinion Filed March 2, 2012.
On Appeal from the 283rd Judicial District Court
Dallas County, Texas
Trial Court Cause Nos. F09-45071-T, F10-34175-T
MEMORANDUM OPINION
Before Justices Moseley, Lang-Miers, and Murphy
Opinion By Justice Lang-Miers
Ricardo Hely Rivas waived a jury and pleaded guilty to burglary of a habitation and violation of a protective order/stalking. See Tex. Penal Code Ann. §§ 25.07(a), 30.02(a) (West 2011). The trial court assessed punishment at eight years' imprisonment in each case. In a single issue, appellant contends the trial court abused its discretion by sentencing him to imprisonment. We affirm. 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 contends the trial court abused its discretion by sentencing him to imprisonment in each case because such punishment violates the objectives of the penal code. Appellant asserts that because he had a history of assaultive behavior, and the probation department recommended a supervision plan addressing that behavior, the trial court should have granted appellant community supervision. Appellant further argues that because the accomplice in the burglary offense received ten years' community supervision, the trial court abused its discretion by sentencing appellant to imprisonment rather than placing him on community supervision. The State responds that appellant has failed to preserve this issue for appellate review and, alternatively, the record does not show the sentences violate the objective of the penal code.
Appellant did not complain about the sentences either at the time they were imposed or in his motions for new trial, which complained the “verdict” was “contrary to the law and evidence.” 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 a timely request, objection, or motion). Thus, appellant has not preserved his issue for our review.
Moreover, as a general rule, punishment that is assessed within the statutory range for an 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). The punishment range for burglary of a habitation, a first- degree felony offense, is five to ninety-nine years or life imprisonment. See Tex. Penal Code Ann. §§ 12.32, 30.02(d). The punishment range for violation of a protective order/stalking, a third-degree felony offense, is imprisonment for two to twenty years. See id. §§ 12.34, 25.07(g). In each case, appellant's sentence was within the statutory range.
We conclude the trial court did not abuse its discretion by assessing the eight-year sentences. See Jackson v. State, 680 S.W.2d 809, 814 (Tex. Crim. App. 1984). We resolve appellant's sole issue against him. We affirm the trial court's judgments.
ELIZABETH LANG-MIERS
JUSTICE
Do Not Publish
Tex. R. App. P. 47
110390F.U05
Court of Appeals Fifth District of Texas at Dallas JUDGMENT
RICARDO HELY RIVAS, Appellant
V.
THE STATE OF TEXAS, Appellee
No. 05-11-00390-CR
Appeal from the 283rd Judicial District Court of Dallas County, Texas. (Tr.Ct.No. F09- 45071-T).
Opinion delivered by Justice Lang-Miers, Justices Moseley and Murphy participating.
Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED.
Judgment entered March 2, 2012.
ELIZABETH LANG-MIERS
JUSTICE
Court of Appeals Fifth District of Texas at Dallas JUDGMENT
RICARDO HELY RIVAS, Appellant
V.
THE STATE OF TEXAS, Appellee
No. 05-11-00391-CR
Appeal from the 283rd Judicial District Court of Dallas County, Texas. (Tr.Ct.No. F10- 34175-T).
Opinion delivered by Justice Lang-Miers, Justices Moseley and Murphy participating.
Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED.
Judgment entered March 2, 2012.
ELIZABETH LANG-MIERS
JUSTICE