Murphy, Benjamin Gerrod v. State

Opinion

AFFIRM; Opinion issued November 14, 2012.

In The (tourt ot $tppca1 I iftlj itritt of xa at afta No. 05-12-00364-CR

BENJAMIN GERROD MURPHY, Appellant

V.

THE STATE OF TEXAS, Appdllee

On Appeal from the 282nd Judicial District Court I)allas County, Texas Trial Court Cause No. F11-41363-S

MEMORANDUM OPINION Before Justices Moseley, Fillmore. and Myers Opinion by Justice Fillmore

Benjamin Gerrod Murphy waived a jury and pleaded guilty to injury to a child. See TEX.

PENAL CODE 22.04(a) (West 2011). The trial court assessed punishment at five years’

imprisonment. In a single issue, Murphy contends the trial court abused its discretion by

sentencing him to imprisonment. 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. Murphy contends the trial court abused its discretion by sentencing him to imprisonment

because the punishment violates the objectives of the penal code. Murphy asserts that because

lie did not intentionally hann the child and lie received deterred probation in a different case, he

shonld have received probation rather than a prison term. The State responds that Murphy failed

to preserve this issue for appellate review and, alternatively, the record does not show the

sentence violates the ohjectives ot the penal code.

Murphy did not complain about the sentence either at the time it was imposed or in a

motion for new trial .5cc TEx. R. APP. P. 33. l(( 1): Castaneda v. State. 135 S.W.3d 719, 723

(Tex. App.—Dallas 2003, no pet.) (to preserve error, appellant must make a timely request,

objection. 01. motion). As a result. Murphy has not preserved the issue for our review.

Additionally, as a general rule, punishment that is assessed within the statutory range for

an offense is not excessive or unconstitutionally cruel or unustial. Kirk v. State, 949 S.W.2d 769,

772 (Tex. App.—Dallas 1997, pet. ref’d). The punishment range for injury to a child, a third-

degree felony olense. is two to ten years’ imprisonment. .5cc TEx. PENAL CoDE ANN. § 12.34,

22.04(f). Murphy’s five-year sentence is within the statutory range.

We conclude the trial court did not abuse its discretion by assessing the five-year

sentence. See Jackson r. State, 68() S.W.2d 809, 814 (Tex. Crim. App. 1984). We overrule

Murphy’s sole issue.

We affirm the trial court’s judgment. /‘

ROBERT M. FILLMORE JUSTICE

Do Not Publish TEx. R. APP. P.47 1 20364F.U05

-2- /

Qiourt of Ztppca1 jiftlj Ottrict of Exa at alla

JUDGMENT

BENJAMIN GERROD MURPHY, Appeal from the 282nd Judicial District Appellant Court of Dallas County, Texas (Tr.Ct.No. El l-41463-S. No. 1)5-1 2-00364-CR V. Opinion delivered h Justice Fillmore, Justices Moseley and Myers participating. THE STATE OF TEXAS, Appellec

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

Jud2ment entered November 14, 2012.