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Allen v. State

Court of Appeals Fifth District of Texas at Dallas
Jun 25, 2012
No. 05-11-00944-CR (Tex. App. Jun. 25, 2012)

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


Summaries of

Allen v. State

Court of Appeals Fifth District of Texas at Dallas
Jun 25, 2012
No. 05-11-00944-CR (Tex. App. Jun. 25, 2012)
Case details for

Allen v. State

Case Details

Full title:CURTIS WAYNE ALLEN, Appellant v. THE STATE OF TEXAS, Appellee

Court:Court of Appeals Fifth District of Texas at Dallas

Date published: Jun 25, 2012

Citations

No. 05-11-00944-CR (Tex. App. Jun. 25, 2012)