Affirmed and Memorandum Opinion filed February 19, 2004.
In The
Fourteenth Court of Appeals
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NO. 14-03-00445-CR
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ROBERT BERNARD ANDERS, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 56th District Court
Galveston County, Texas
Trial Court Cause No. 02CR1570
M E M O R A N D U M O P I N I O N
In a single issue, appellant Robert Bernard Anders contends the trial court erred in assessing punishment by failing to consider mitigating evidence. We affirm.
I. Procedural Background
Appellant was charged by indictment with the offense of burglary of a building. See Tex. Pen. Code Ann. ' 30.02 (Vernon 2003). Appellant pleaded guilty to the offense and the trial court assessed punishment at two years= confinement in the State Jail Division of the Texas Department of Criminal Justice, with credit for 193 days served. Appellant filed a motion for new trial asserting the contentions he now raises on appeal.[1]
II. Issue Presented
Appellant contends the trial court erred by failing to consider the nature of the crime, the facts surrounding the crime, the statement of the victim, and the character and reputation of appellant while incarcerated in the Galveston County Jail for the purpose of mitigating appellant=s punishment.
III. Analysis and Discussion
We review a sentence imposed by the trial court for abuse of discretion. Jackson v. State, 680 S.W.2d 809, 814 (Tex. Crim. App. 1984). As a general rule, a penalty assessed within the proper punishment range will not be disturbed on appeal. Id. The exception to the general rule is triggered when a defendant is sentenced without at least some evidence or facts available to the court on which the court could have relied in assessing punishment. See id.
In this case, the trial court assessed a punishment of two years= confinement. The range of punishment for the offense of burglary of a building applicable to appellant is not more than two years= or less than 180 days= confinement in a state jail. See Tex. Pen. Code Ann. '' 12.35(a), 30.02(c)(1) (Vernon 2003). In addition to confinement, an individual adjudged guilty of a state jail felony may be punished by a fine of up to $10,000. Tex. Pen. Code Ann. ' 12.35(b). Thus, the sentence imposed by the trial court is within the statutory range.
Moreover, testimony from the victim, who conversed with appellant at the scene of the burglary, and the police sergeant who found appellant in the victim=s garage provided evidence that appellant broke into the garage. Appellant also admitted to committing the offense during his testimony. In addition, the State introduced judgments revoking community supervision with regard to appellant=s prior convictions for possession of cocaine and misdemeanor theft as well as a judgment for a 2002 misdemeanor theft conviction. When assessing punishment, the trial court stated: AIf it weren=t for that previous State [sic] jail sentence and failing to learn from that, I would be more understanding about this. I think we were very understanding during your previous probation, and it didn=t seem to get us anywhere, even after you finally got revoked.@ Under these circumstances, the trial court did not abuse its discretion in assessing appellant=s punishment. Accordingly, we overrule appellant=s sole issue for review.
Having overruled appellant=s sole issue, we affirm the trial court=s judgment.
/s/ Kem Thompson Frost
Justice
Judgment rendered and Memorandum Opinion filed February 19, 2004.
Panel consists of Chief Justice Hedges and Justices Frost and Guzman.
Do Not Publish C Tex. R. App. P. 47.2(b).
[1] The record contains two identical motions for new trial filed March 10, 2003 and March 17, 2003, respectively. The record does not contain a ruling by the trial court on either motion.