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Clemons v. State

Court of Appeals of Texas, Fifth District, Dallas
May 28, 2008
No. 05-07-01127-CR (Tex. App. May. 28, 2008)

Opinion

No. 05-07-01127-CR

Opinion Filed May 28, 2008. DO NOT PUBLISH, Tex. R. App. P. 47.

On Appeal from the 203rd Judicial District Court, Dallas County, Texas, Trial Court Cause No. F04-00101-KP.

Before Justices MOSELEY, FRANCIS, and LANG.


MEMORANDUM OPINION


Ricky Furlough Clemons appeals following the adjudication of his guilt for aggravated sexual assault of a child younger than fourteen years. In a single issue, appellant contends the trial court abused its discretion by sentencing him to prison. The background of the case and the evidence adduced 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 47.1 because the law to be applied in the case is well settled. We affirm the trial court's judgment. Appellant argues the trial court abused its discretion by sentencing him to prison for twelve years rather than ordering treatment for his mental illness. Appellant asserts he needed treatment to stabilize his schizophrenia before being in a sex offender treatment program, and he should have received mental health treatment rather than a prison term. The State responds appellant failed to preserve his complaints for appellate review and, alternatively, the trial court acted within its discretion in sentencing appellant. Appellant did not complain about the sentence either at the time it was imposed or in his 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.). Even constitutional rights may be waived. Rhoades v. State, 934 S.W.2d 113, 120 (Tex.Crim.App. 1996); Castaneda, 135 S.W.3d at 723. Moreover, once the trial court adjudicated appellant guilty, a sentence of imprisonment was the only available option. See Tex. Code Crim. Proc. Ann. art. 42.12, § 3g(1)(E) (Vernon Supp. 2007) (trial court may not impose community supervision following conviction for aggravated sexual assault). And, the twelve-year sentence is within the statutory punishment range for the offense. See Tex. Pen. Code Ann. § 12.32(a) (Vernon 2003); Kirk v. State, 949 S.W.2d 769, 772 (Tex.App.-Dallas 1997, pet. ref'd). We conclude the trial court did not abuse its discretion in assessing the twelve-year sentence. We resolve appellant's sole issue against him. We affirm the trial court's judgment.


Summaries of

Clemons v. State

Court of Appeals of Texas, Fifth District, Dallas
May 28, 2008
No. 05-07-01127-CR (Tex. App. May. 28, 2008)
Case details for

Clemons v. State

Case Details

Full title:RICKY FURLOUGH CLEMONS, Appellant v. THE STATE OF TEXAS, Appellee

Court:Court of Appeals of Texas, Fifth District, Dallas

Date published: May 28, 2008

Citations

No. 05-07-01127-CR (Tex. App. May. 28, 2008)