Affirm and Opinion filed July 9, 2013

In The 

## Court of Appeals **Fifth District of Texas at Dallas**

No. 05-12-01416-CR EDUARDO ALFREDO SANCHEZ, Appellant
V. THE STATE OF TEXAS, Appellee On Appeal from the 195th Judicial District Court Dallas County, Texas Trial Court Cause No. F11-56520-N 

### MEMORANDUM OPINION Before Justices Moseley, Bridges, and Lang-Miers Opinion by Justice Bridges A jury convicted Eduardo Alfredo Sanchez of aggravated robbery with a deadly weapon and assessed punishment at fo rty years’ imprisonment. See T EX
. P ENAL C ODE A NN . § 29.03(a) (West 2011). In two issues, appellant contends the sentence violates hi s constitutional rights under both the United States and Texas Constitutions. We affirm the trial court’s judgment. The background of the case and the evid ence 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 be cause the law to be applied in the case is well settled.‐ 2 ‐ Appellant contends the forty- year sentence is grossly disp roportionate to the crime and inappropriate to the offender, in violation of the Eighth and Fourteenth Amendments to the United States Constitution and Article I, Section 13 of the Texas Constitution. See U.S. C ONST

. amend. VIII, XIV; T EX
. C ONST . art. I, § 13. Appellant assert s his drug use made him commit the offense, his membership in a gang while in pr ison was for protection on ly, and he should have been given a lighter sentence cons idering the circumstances of th e offense. The State responds that appellant has failed to preserve his compla ints for appellate review and, alternatively, the sentence is neither grossly dispropor tionate nor cruel or unusual punishment. Appellant did not complain abou t the sentence either at the time it was imposed or in a motion for new trial. See T EX
. R. A PP
. P. 33.1(a)(1); Castaneda v. State , 135 S.W.3d 719, 723 (Tex. App.—Dallas 2003, no pet.). Thus, appellant has not preserved this issue for appellate review. Moreover, punishment that is assessed within the statutory range for an offense is neither excessive nor unconstitutionally cruel or unusual. Kirk v. State , 949 S.W.2d 769, 772 (Tex. App.—Dallas 1997, pet. ref’d); see also Jackson v. State , 680 S.W.2d 809, 814 (Tex. Crim. App. 1984). Aggravated robbery with a deadly weapon is a first-degree felony offense punishable by imprisonment for life or for any term of not more than ninety-nine years or less than five years, and an optional fine not to exceed $10,000. See T EX
. P ENAL C ODE A NN . §§ 12.32, 29.03(b). The jury heard testimony from Maheswar Tamang, th e complainant, who described how appellant came into his store, grabbed him around the nec k, placed a gun against hi s neck, and threatened to kill him unless he gave appellant “all the money.” During the punishment phase, appellant stipulat ed that he had misdemeanor convictions for possession of marijuana in 2004 and 2008; a fe lony conviction for possession of a controlled‐ 3 ‐ substance in 2006; and a misdemeanor conviction fo r criminal mischief in 2009. Appellant said his “methamphetamine problem” caused him to commit the instant offense. The jury heard testimony from Vicki Martinez, w ho testified appellant hit her in the face and stole her car. Balch Springs Officer Nation testified that when he stopped the car, appellant was in the passenger seat. After Nation found a burnt marijuana ciga rette in the ashtra y and a gun under the passenger seat where appellant had been sitting, he a rrested appellant for unlawfully carrying a weapon. The jury also heard te stimony from Dallas police officer B.K. Nelson that appellant’s tattoos showed he was a member of the prison gang Tango Blast. We conclude the record does not support appellant’s complaint that the forty-year sentence is disproportionate. We resolve appellant’s two issues against him. We affirm the trial court’s judgment.

Do Not Publish Tex. R. App. P. 47 121416F.U05 /David L. Bridges/ DAVID L. BRIDGES JUSTICE‐ 4 ‐ 

## Court of Appeals **Fifth District of Texas at Dallas**

JUDGMENT

EDUARDO ALFREDO SANCHEZ, Appellant
No. 05-12-01416-CR V. THE STATE OF TEXAS, Appellee Appeal from the 195th Judicial District Court of Dallas County, Texas (Tr.Ct.No. F11-56520-N). Opinion delivered by Justice Bridges, Justices Moseley and Lang-Miers participating.

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

.

Judgment entered July 9, 2013

/ David L. Bridges/ DAVID L. BRIDGES JUSTICE