Opinion
No. 10-06-00187-CR.
Opinion delivered and filed January January 17, 2007. DO NOT PUBLISH.
Appeal from the 30th District Court, Wichita County, Texas, Trial Court No. 36,027-A. Affirmed.
Before Chief Justice GRAY, Justice VANCE, and Justice REYNA.
MEMORANDUM OPINION
Flowers pleaded guilty to aggravated sexual assault. See Act of May 28, 1997, 75th Leg., R.S., ch. 1286, § 2, 1997 Tex. Gen. Laws 4911, 4911-12 (amended 1999-2003) (current version at TEX. PENAL CODE ANN. § 22.021(a) (Vernon Supp. 2006)). The trial court deferred adjudication of guilt and placed Flowers on deferred-adjudication community supervision for ten years. About four years later, the trial court revoked Flowers's community supervision, adjudicated him guilty, and sentenced him to forty years' imprisonment. Flowers appeals his sentence. We affirm. In Flowers's one issue, he contends that the trial court abused its discretion in assessing Flowers's punishment. We assume without deciding that Flowers preserved his complaint. "When a defendant waives a jury, the trial judge has discretion to assess the punishment within the range provided by law which he finds appropriate in the circumstances." Morano v. State, 572 S.W.2d 550, 551 (Tex.Crim.App. 1978); see Ditto v. State, 988 S.W.2d 236, 239 (Tex.Crim.App. 1999) (deferred-adjudication community supervision); Carroll v. State, 975 S.W.2d 630, 632 (Tex.Crim.App. 1998); Jackson v. State, 680 S.W.2d 809, 814 (Tex.Crim.App. 1984). The sentencing judge's "decision as to punishment will not be disturbed on appeal absent a showing of abuse of discretion and harm." Jackson at 814. "It is . . . the general rule that as long as a sentence is within the proper range of punishment it will not be disturbed on appeal." Id. The statutory range of punishment for aggravated sexual assault, a first-degree felony, is imprisonment for life or for at least five or as many as ninety-nine years and a fine of as much as $10,000. See TEX. PENAL CODE ANN. § 22.021(e) (Vernon Supp. 2006); id. § 12.32 (Vernon 2003). Flowers's punishment of forty years' imprisonment falls within that statutory range. Flowers contends, "The outcome of the case at bar clearly demonstrates that the [trial c]ourt's punishment sentence of Mr. Flowers was based solely upon the egregiousness of the offense. . . ." (Br. at 6.) Flowers contends: "Essentially then, at the punishment hearing following his adjudication, Mr. Flowers was accused of and admitted to being irresponsible, childish and lacking in tenacity. These character flaws are the facts upon which the Court should have based its punishment of the defendant." ( Id. at 3.) At punishment, the trial court may admit evidence "as to any matter the court deems relevant to sentencing," including "the prior criminal record of the defendant," "his character," and "the circumstances of the offense for which he is being tried." TEX. CODE CRIM. PROC. ANN. art. 37.07, § 3 (Vernon 2006); see Bluitt v. State, 137 S.W.3d 51, 54 (Tex.Crim.App. 2004). The trial court did not err in taking into account the facts of Flowers's offense, namely the aggravated sexual assault of a child, as well as Flowers's character and behavior while on community supervision. See Ramirez v. State, 36 S.W.3d 660, 667 (Tex.App.-Waco 2001, pet. ref'd). We perceive no abuse of the trial court's discretion. We overrule Flowers's issue. Having overruled Flowers's sole issue, we affirm.