

NUMBER 13-00-520-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI
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JUDE CHARLES SIMMONS , Appellant,
v.
THE STATE OF TEXAS , Appellee.
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On appeal from the 36th District Court of San Patricio County, Texas.
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O P I N I O N
Before Chief Justice Valdez and Justices Yañez and Kennedy (1)
Opinion by Justice Kennedy
Appellant was indicted for aggravated robbery.  He pleaded guilty and chose a jury to assess his punishment. After hearing
evidence, the jury assessed punishment at confinement for forty years.  Appellant's one point of error alleges that the
punishment assessment was disproportionate to the seriousness of the offense.  He argues that the punishment assessed
constitutes cruel and unusual punishment as forbidden by the State and Federal Constitutions.
It is well settled that the benchmark to judge excessive incarceration is whether the punishment assessed is within the limit
prescribed by statute.  Lombardo v. State, 503 S.W.2d 780, 784 (Tex. Crim. App. 1974). Aggravated robbery is a first
degree felony.  Tex. Penal Code Ann. Sec. 29.03(b) (Vernon's Supp. 2000).  The penalty prescribed therefor is
imprisonment for life or for any term of not more than ninety-nine years or less then five years, together with a fine of not
more than $10,000.  Tex. Penal Code Ann. Sec. 13.32 (Vernon's Supp. 2000).
The penalty assessed is within the range prescribed by statute; therefore, the point of error has no merit and we overrule it. 
We AFFIRM the judgment of the trial court.
Noah Kennedy
Retired Justice


Do not publish.  Tex. R. App. P. 47.3.

Opinion delivered and filed 
this the 16th day of August, 2001.


1. Retired Justice Noah Kennedy assigned to this Court by the Chief Justice of the Supreme Court of Texas pursuant to
Tex. Gov't Code Ann. § 74.003 (Vernon 1998).
