Opinion
No. 05-11-00944-CR
06-25-2012
CURTIS WAYNE ALLEN, Appellant v. THE STATE OF TEXAS, Appellee
AFFIRM; Opinion Filed June 25, 2012.
On Appeal from the Criminal District Court No. 3
Dallas County, Texas
Trial Court Cause No. F05-40245-J
MEMORANDUM OPINION
Before Chief Justice Wright and Justices Bridges and Myers
Opinion By Chief Justice Wright
Curtis Wayne Allen was convicted of aggravated assault and sentenced to ten years' imprisonment. In his sole issue, appellant contends the trial court violated his due process rights under the United States and Texas Constitutions by refusing to consider all of the evidence in assessing punishment. We affirm the trial court's judgment. Because all dispositive issues are well settled in law, we issue this memorandum opinion. See Tex. R. App. P. 47.4.
Appellant pleaded guilty to the charged offense. Pursuant to a plea agreement, the trial court deferred adjudication of guilt, placed appellant on five years' community supervision, and assessed a $1000 fine. The State later moved to adjudicate guilt, alleging appellant violated several conditions of his community supervision. Appellant pleaded true to the allegations in the motion to adjudicate guilt. After a hearing the trial court revoked the community supervision, adjudicated appellant's guilt, and assessed punishment at ten year's imprisonment.
In his sole issue, appellant contends the trial court denied him due process under the United States and Texas Constitutions because the court imposed a predetermined sentence basing its sentencing determination solely on the aggravating factors, and failing to consider mitigating evidence. The State responds that appellant waived the alleged errors for appellate review. The State further responds that the record supports the sentence imposed and does not show the trial court failed to consider all of the evidence.
To preserve error for appeal, a party must make a timely request, motion, or objection. See Tex. R. App. P. 33.1(a)(1); Castaneda v. State, 135 S.W.3d 719, 723 (Tex. App.-Dallas 2003, no pet.). Appellant did not raise this complaint at the time sentence was imposed, nor did he file a motion for new trial. Therefore, he did not preserve his complaint for appeal. See Castaneda, 135 S.W.3d at 723-24.
Moreover, aggravated assault with a deadly weapon is a second-degree felony. See Tex. Penal Code Ann. §§ 22.01, 22.02 (West 2011). The punishment range is two to twenty years' imprisonment and a fine of up to $10,000. Id. § 12.33. The ten-year sentence imposed by the trial court was in the middle of the punishment range. Nothing in the record supports appellant's complaint that the trial judge refused to consider all of the evidence presented. We conclude the trial judge did not violate appellant's due process rights by imposing the ten-year sentence. We resolve his sole issue against him.
We affirm the trial court's judgment.
CAROLYN WRIGHT
CHIEF JUSTICE
Do Not Publish
Tex. R. App. P. 47
110944F.U05
Court of Appeals Fifth District of Texas at Dallas JUDGMENT
CURTIS WAYNE ALLEN, Appellant
V.
THE STATE OF TEXAS, Appellee
No. 05-11-00944-CR
Appeal from the Criminal District Court No. 3 of Dallas County, Texas. (Tr.Ct.No. F05- 40245-J).
Opinion delivered by Chief Justice Wright, Justices Bridges and Myers participating.
Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED.
Judgment entered June 25, 2012.
CAROLYN WRIGHT
CHIEF JUSTICE