Opinion
No. 05-08-00898-CR
Opinion Filed May 26, 2009. DO NOT PUBLISH. Tex. R. App. P. 47
On Appeal from the 265th Judicial District Court Dallas County, Texas, Trial Court Cause No. F07-23502-UR.
Before Justices MOSELEY, O'NEILL, and MURPHY.
OPINION
Nolan Frederick Johnson waived a jury, entered an open guilty plea to aggravated assault with a deadly weapon, and pleaded true to one enhancement paragraph and not true to a second enhancement paragraph. After finding both enhancement paragraphs true, the trial court assessed punishment at forty years' imprisonment. In a single point of error, appellant contends the trial court abused its discretion by sentencing him to prison. We affirm. Appellant argues the punishment assessed by the trial court violates the objectives of the penal code because it is not necessary to prevent a likely recurrence of his behavior and does not meet the objective of rehabilitation. Appellant asserts the evidence shows he expressed remorse and was off his medication for bipolar disorder and schizophrenia when he threw fingernail polish remover on the complainant and used a lighter to set her afire. Appellant argues he should have received probation and treatment for his schizophrenia and addiction to alcohol and narcotics. The State responds that appellant has failed to preserve his complaint for appellate review and, alternatively, the record shows the trial court properly exercised its discretion in assessing a prison sentence. 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.). Moreover, the trial court imposed punishment within the statutory range for the offense. See Tex. Pen. Code Ann. §§ 12.42(d), 22.02(a) (Vernon Supp. 2008); 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 forty-year prison term. See Jackson v. State, 680 S.W.2d 809, 814 (Tex.Crim.App. 1984). We overrule appellant's sole point of error. We affirm the trial court's judgment.