Monette, Rodrigus v. State

Opinion

____

AFFIRM; Opinion issued November 28, 2012.

In The (ourt of tppaL jfiftj Itrict of txa at atta No. 05-12-00352-CR

RODRIGUS GERARD MONETr[E, AppeI1mt

THE STATE OF TEXAS, Appellee

On Appeal from the 283rd Judicial District Court Dallas County, Texas Trial Court Cause No. F1l-52092-T

MEMORANDUM OPINION Before Justices Richter, LangMiers, and Myers Opinion by Justice Richter

Rodrigus Gerard Monette appeals from the revocation of his community supervision. In

two issues, appellant contends the sentence constitutes cruel and unusual punishment, in

violation of the United States and Texas Constitutions. 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 possession of marijuana in an amount of

five pounds or less but more than four ounces. See HEALTH & SAFETY CODE ANN. 481.121(a), (h(3) \Vesi 2010). Pursuant to a plea agreement, the trial court assessed punishment at two

years’ conhinement in a state jail, probated tor two ears, and a S I .500 fine. The State later

moved to revoke community supervision, alleging appellant violated four conditions of

community supervision. In a hearing on the motion, appellant pleaded not true to violating one

condition, and pleaded true to violating three conditions, The trial court found all of the

allegations true, revoked appellant’s community supervision, and assessed punishment at

eighteen months’ confinement in a state jail.

Appel lain contends the eighteen—month sentence is cruel and unusual punishment. in

violation of the Eighth and Fourteenth Amendments to the United State Constitution and Article

I, Section Thirteen of the Texas Constitution. See U.S. C0NsT. amend. VIII, XIV; Tux. C0NsT.

art. 1. § 13. Appellant asserts the eighteen-month sentence is “clearly disproportionate to the

offense. The State responds that appellant has failed to preserve his complaints for appellate

review and, alternatively, the sentence is not cruel, unusual, or disproportionate to the crime.

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)(l); C’astaneda i’. State. 135 S.W.3d 719, 723

(Te. App.—Dallas 2003, no pet.) (for appeal to he preserved, record must show appellant made

timely request, objection, or motion). In his motion for new trial, appellant contended the

“verdict is contrary to the law and evidence.” Thus, he has not preserved this issue for our

review.

Moreover, we note, and appellant acknowledges in his brief, that the punishment is

within the statutory range for the state jail felony offense. See HEALTH & SAFETY CODE ANN. § 481.121(b)(3): TEx. PENAL CODE ANN. § 12.35(a) (West 2011). As a general rule, punishment

that is assessed within the statutory range for an offense is neither excessive nor unconsi itulionally cruel or unusual. Kirk v. Stutc, 949 SW2d 769, 772 ([cx. App—Dallas

1 J97, pet. rcfd): ‘ee u/cr’ Juckvon v. Stuic’. 6$0 S.W.2d 809. 814 (Tex. Crim. App. 1984) (as

long as sentence within proper range of punishment, it will not be disturbed on appeal). We

resolve appellant’s two issues against him.

We affirm the trial court’s judgment.

MARTIN RICHTE J LIST ICE

Do Not Publish Thx. R. APP. P. 47

I 20352F,U05 Qourt of ppat jftftlj Oitrirt of Iixa at Oafta

JUDGMENT

RODRIGUS GERARD MONETT[i, Appeal from the 283rd Judicial District Appellant Court of Dallas County. Texas (TrCt.No. Fl 152092-T), No. O5-l2-OO352CR V. Opinion delivered by Justice Richter. Justices Lang-Miers and Myers THE STATE OF TEXAS, Appellee participating.

Based on the Court’s opinion of this date, the trial court’s judgment is AFFIRMED.

Judgment entered November 28. 2012.

MARTIN RICI TER JUSTICE