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Vasquez v. State

Court of Appeals Fifth District of Texas at Dallas
Jan 31, 2012
No. 05-11-01301-CR (Tex. App. Jan. 31, 2012)

Opinion

No. 05-11-01301-CR

01-31-2012

SAMUEL ANGEL VASQUEZ, JR., Appellant v. THE STATE OF TEXAS, Appellee


AFFIRM; Opinion Filed January 31, 2012.

On Appeal from the 194th Judicial District Court

Dallas County, Texas

Trial Court Cause No. F07-22041-M

MEMORANDUM OPINION

Before Justices Moseley, FitzGerald, and Richter

Opinion By Justice Moseley

Samuel Angel Vasquez, Jr. appeals from the revocation of his community supervision. In two issues, appellant contends the sentence violates the United States and Texas Constitutions because it is grossly disproportionate to the crime and inappropriate to the offender. We affirm the trial court's judgment. The background of the case and the evidence admitted at trial are well known to the parties, and we therefore limit recitation of the facts. We issue this memorandum opinion pursuant to Texas Rule of Appellate Procedure 47.4 because the law to be applied in the case is well settled.

Appellant waived a jury and pleaded guilty to the third-degree felony offense of assault involving family violence, having a prior conviction for assault-family violence. See Tex. Penal Code Ann. § 22.01(a)(1) (West 2011); Tex. Fam. Code Ann. § 71.004(1) (West 2008). Pursuant to a plea agreement, the trial court assessed punishment at ten years' imprisonment, probated for four years. The State subsequently filed a motion to revoke, alleging appellant violated the conditions of his community supervision, including that he committed two new offenses. The State later filed an amended motion to revoke, alleging appellant received a DWI conviction while on community supervision, committed the offense of possession of a controlled substance, and violated other conditions of his community supervision. Appellant pleaded true to the allegations in a hearing on the motion. Appellant's signed plea of true and stipulation of evidence was admitted into evidence. The trial court found the allegations true, revoked appellant's community supervision, and assessed punishment at eight years' imprisonment.

In two issues, appellant contends the eight-year sentence is severe and disproportionate to the crime, in violation of the United States and Texas Constitutions. See U.S. Const. Amend. VIII, XIV. Specifically, appellant asserts the sentence is only "two years shy of the maximum," and violates the Constitution. Appellant asserts his arrests for the new DWI and possession of a controlled substance offenses demonstrated his need for treatment and not incarceration. The State responds that appellant has failed to preserve his issues for appellate review and, alternatively, the sentence is not grossly disproportionate to the offense charged.

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.) (for error to be preserved for appeal, record must show appellant made a timely request, objection, or motion). After sentencing, appellant did not object to the sentence, and his motion for new trial complained the "verdict" was "contrary to the law and evidence." Thus, appellant has not preserved his issues for our review.

Moreover, as a general rule, punishment that is assessed within the statutory range for an offense is not excessive or unconstitutionally cruel or unusual. Kirk v. State, 949 S.W.2d 769, 772 (Tex. App.-Dallas 1997, pet. ref'd). In this case, the trial court imposed punishment within the statutory range. See Tex. Penal Code Ann. §§ 12.34, 22.01(b)(2) (West 2011).

We conclude the trial court did not abuse its discretion in assessing the eight-year sentence. See Jackson v. State, 680 S.W.2d 809, 814 (Tex. Crim. App. 1984) (sentence within proper range of punishment will not be disturbed on appeal). We resolve appellant's two issues against him.

We affirm the trial court's judgment.

JIM MOSELEY

JUSTICE

Do Not Publish

Tex. R. App. P. 47

111301F.U05


Summaries of

Vasquez v. State

Court of Appeals Fifth District of Texas at Dallas
Jan 31, 2012
No. 05-11-01301-CR (Tex. App. Jan. 31, 2012)
Case details for

Vasquez v. State

Case Details

Full title:SAMUEL ANGEL VASQUEZ, JR., Appellant v. THE STATE OF TEXAS, Appellee

Court:Court of Appeals Fifth District of Texas at Dallas

Date published: Jan 31, 2012

Citations

No. 05-11-01301-CR (Tex. App. Jan. 31, 2012)