Opinion
No. 05-10-01408-CR
Opinion issued December 14, 2011. DO NOT PUBLISH. Tex. R. App. P. 47.
On Appeal from the 265th Judicial District Court Dallas County, Texas, Trial Court Cause No. F08-26068-R.
Before Justices MORRIS, FRANCIS, and LANG-MIERS.
MEMORANDUM OPINION
A jury convicted Allen Franklin Elliott of aggravated robbery with a deadly weapon and the trial court assessed punishment at forty years in prison. In a single issue, appellant contends the trial court abused its discretion by sentencing him to imprisonment because that punishment violates the objectives of the penal code. We affirm. Appellant contends the trial court abused its discretion by sentencing him to forty years in prison because such punishment violates the objectives of the penal code and is not necessary to prevent the likely recurrence of appellant's criminal behavior. Specifically, appellant asserts a sentence of imprisonment does not meet the penal code's goal of rehabilitation because nothing in the record suggests that he could not be further rehabilitated. He argues the punishment assessed is "merely punitive and does not further the penal code's goal of rehabilitation." He maintains the sentence "does not recognize differences in rehabilitative possibilities among individual defendants," he committed the offense only to "perpetuate his drug addition," and he was a good candidate for rehabilitation rather than incarceration. Appellant did not complain about his sentence at the time it was assessed. See Tex. R. App. P. 33.1(a)(1)(A) (requiring timely and specific request, objection, or motion to trial court as prerequisite to presenting appellate complaint); Castaneda v. State, 135 S.W.3d 719, 723 (Tex. App.-Dallas 2003, no pet.). Although appellant raised these complaints in his motion for new trial, nothing in the record shows appellant brought his motion to the trial court's attention. See Tex. R. App. P. 21.6; Carranza v. State, 960 S.W.2d 76, 78-79 (Tex. Crim. App. 1998) (complaint raised in motion for new trial not preserved unless motion is presented to trial court). The rules of appellate procedure require a defendant to "present" a motion for new trial to the trial court within specified time limits. Tex. R. App. P. 21.6. To satisfy the presentment requirement, a defendant must actually deliver the motion for new trial to the trial court or otherwise bring the motion to the attention or actual notice of the trial court. See Carranza, 960 S.W.2d at 78-79 (merely filing motion for new trial is not sufficient evidence of its presentment to trial court); see also Gardner v. State, 306 S.W.3d 274, 305 (Tex. Crim. App. 2009). Presentment must be apparent from the record, and may be shown by such proof as the judge's signature or notation on the motion or proposed order, an entry on the docket sheet showing the motion was brought to the trial court's attention, or a hearing was set. See Gardner, 306 S.W.3d at 305; see also Carranza, 960 S.W.2d at 79-80 (providing non-exhaustive list as to how presentment requirement may be fulfilled). Here, appellant's motion for new trial includes a proposed form order that is blank and bears no notations by the court. The trial court's docket sheet contains no reference to the motion for new trial, and the record otherwise contains no evidence of a hearing, signature or notation by the judge, or any indication the trial court had actual knowledge of the motion. Therefore, because appellant did not object to his sentence when it was imposed or present his motion for new trial to the trial court, we conclude appellant has not preserved this issue for appellate review. See Castaneda, 135 S.W.3d at 723; Carranza, 960 S.W.2d at 79. Moreover, appellant concedes the trial court assessed punishment within the statutory range for his offense. See Tex. Penal Code Ann. §§ 12.32, 29.03(b). As a general rule, a sentence that is assessed within the punishment range for the offense is neither cruel, unusual, nor excessive, and complies with the objectives of the Texas Penal Code. Castaneda, 135 S.W.3d at 723; Carpenter v. State, 783 S.W.2d 232, 232-33 (Tex. App.-Dallas 1989, no pet.). On this record, we conclude the trial court did not abuse its discretion in sentencing appellant to forty years imprisonment in this case. See Jackson v. State, 680 S.W.2d 809, 814 (Tex. Crim. App. 1984) (stating general rule that sentence will not be disturbed on appeal if within proper range of punishment). Accordingly, we resolve appellant's sole issue against him. We affirm the trial court's judgment.