Opinion
NO. 09-12-00129-CR
09-12-2012
KENNETH MAURICE RANDOLPH, JR., Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the Criminal District Court
Jefferson County, Texas
Trial Cause No. 11-11772
MEMORANDUM OPINION
Pursuant to a plea bargain agreement, Kenneth Maurice Randolph, Jr. pleaded guilty to theft. The trial court found the evidence sufficient to find Randolph guilty, but deferred further proceedings and placed Randolph on community supervision for five years. The State subsequently filed a motion to revoke Randolph's unadjudicated community supervision. Randolph pleaded "true" to violating four conditions of his community supervision. The trial court found that Randolph violated the conditions of his community supervision, found Randolph guilty of theft, and sentenced Randolph to two years in state jail. In two appellate issues, Randolph contends that the trial court failed to consider the entire range of punishment and improperly assessed the maximum sentence. We affirm the trial court's judgment.
A trial court's arbitrary refusal to consider the entire range of punishment constitutes a denial of due process. Ex parte Brown, 158 S.W.3d 449, 454 (Tex. Crim. App. 2005). In this case, the record does not indicate that Randolph objected to his sentence. See Tex. R. App. P. 33.1(a). Even if Randolph had objected, absent a clear showing to the contrary, we presume that the trial court was neutral and detached in sentencing the defendant and considered the full range of punishment. See Brumit v. State, 206 S.W.3d 639, 645 (Tex. Crim. App. 2006). Our review of the record does not indicate that the trial court made comments indicating bias, partiality, or a failure to consider the entire punishment range. See id. at 645-46.
Additionally, Randolph's sentence is within the statutorily-authorized range of punishment for the charged offense. See Tex. Penal Code Ann. §§ 12.35(a), 31.03(e)(4)(A) (West Supp. 2012). Generally, a sentence that is within the range of punishment established by the Legislature will not be disturbed on appeal. Jackson v. State, 680 S.W.2d 809, 814 (Tex. Crim. App. 1984). A punishment that is within the statutory range for the offense is generally not excessive or unconstitutionally cruel or unusual under the Texas Constitution or the federal Constitution. Jackson v. State, 989 S.W.2d 842, 846 (Tex. App.—Texarkana 1999, no pet.); see also Kirk v. State, 949 S.W.2d 769, 772 (Tex. App.—Dallas 1997, pet. ref'd). This includes sentences imposed at the statutory maximum. See Holley v. State, 167 S.W.3d 546, 549-50 (Tex. App.—Houston [14th Dist.] 2005, pet. ref'd). Accordingly, we overrule Randolph's two issues and affirm the trial court's judgment.
Because the amendments to sections 12.35 and 31.03 are not material to this case, we cite to the current versions of the statutes.
AFFIRMED.
________
STEVE McKEITHEN
Chief Justice
Do Not Publish Before McKeithen, C.J., Gaultney and Horton, JJ.