                                IN THE
                        TENTH COURT OF APPEALS

                               No. 10-15-00357-CR

KENNETH SHEETS,
                                                          Appellant
v.

THE STATE OF TEXAS,
                                                          Appellee



                         From the 249th District Court
                            Johnson County, Texas
                            Trial Court No. F49672


                         MEMORANDUM OPINION


      In one issue, appellant, Kenneth Melvin Sheets, contends that his sentences are

excessive and disproportionate punishment for the offenses for which he was convicted.

We affirm.

                                  I.     BACKGROUND

      In the indictment, the State alleged that Sheets committed one count of aggravated

assault with a deadly weapon, one count of evading arrest with a motor vehicle, one
count of fraudulent use or possession of identifying information 10-50 items, and one

count of theft of a motor vehicle. See TEX. PENAL CODE ANN. § 22.02(a)(2) (West 2011); see

also id. §§ 31.03(e)(4)(A), 32.51(c)(3), 38.04(b)(2) (West Supp. 2015). The indictment also

included an enhancement paragraph referencing Sheets’s prior felony conviction for

aggravated robbery with a deadly weapon.

        As part of a plea agreement with the State, Sheets pleaded guilty to the charged

offenses and true to the enhancement paragraph. At the conclusion of the punishment

hearing, the trial court assessed punishment as follows: (1) life imprisonment in the

Institutional Division of the Texas Department of Criminal Justice for the aggravated-

assault-with-a-deadly-weapon         and      fraudulent-use-or-possession-of-identifying-

information counts; (2) twenty years’ confinement for the evading-arrest-with-a-vehicle

count; and (3) 180 days in the State Jail Division of the Texas Department of Criminal

Justice for the theft count. The trial court ordered the sentences to run concurrently and

certified Sheets’s right of appeal as to the punishment phase only. This appeal followed.

                                       II.     ANALYSIS

        In his sole issue on appeal, Sheets contends that his sentences are disproportionate

to the alleged criminal acts. See U.S. CONST. amend. VIII; see also TEX. CONST. art. I, § 13.

        A disproportionate-sentence claim must be preserved for appellate review. See

TEX. R. APP. P. 33.1(a)(1); Rhoades v. State, 934 S.W.2d 113, 120 (Tex. Crim. App. 1996)

(noting that constitutional rights, including the right to be free from cruel and unusual


Sheets v. State                                                                         Page 2
punishment, may be waived); Mercado v. State, 718 S.W.2d 291, 296 (Tex. Crim. App. 1986)

(en banc); see also Noland v. State, 264 S.W.3d 144, 151 (Tex. App.—Houston [1st Dist.]

2007, pet. ref’d) (“[I]n order to preserve for appellate review a complaint that a sentence

is grossly disproportionate constituting cruel and unusual punishment, a defendant must

present to the trial court a timely request, objection, or motion stating the specific grounds

for the ruling desired.”). To preserve a complaint for review, a party must have presented

to the trial court a timely request, objection, or motion that states the specific grounds for

the desired ruling if they are not apparent from the context of the request, objection, or

motion. TEX. R. APP. P. 33.1(a)(1); Landers v. State, 402 S.W.3d 252, 254 (Tex. Crim. App.

2013); Sample v. State, 405 S.W.3d 295, 300 (Tex. App.—Fort Worth 2013, pet. ref’d).

Further, the trial court must have ruled on the request, objection, or motion, either

expressly or implicitly, or the complaining party must have objected to the trial court’s

refusal to rule. TEX. R. APP. P. 33.1(a)(2); Pena v. State, 353 S.W.3d 797, 807 (Tex. Crim.

App. 2011).

        At the sentencing hearing, Sheets did not assert his disproportionate-sentence

claim. Moreover, Sheets did not file a motion for new trial or otherwise present his

objection to the imposed sentence. As such, Sheets has forfeited this complaint. See TEX.

R. APP. P. 33.1(a)(1); Clark v. State, 365 S.W.3d 333, 339 (Tex. Crim. App. 2012); Noland, 264

S.W.3d at 151-52; see also Garcia v. State, No. 10-12-00041-CR, 2014 Tex. App. LEXIS 3960,




Sheets v. State                                                                         Page 3
at **3-5 (Tex. App.—Waco Apr. 10, 2014, no pet.) (mem. op., not designated for

publication).

        And even if Sheets had preserved this complaint, it lacks merit. Sheets’s life

sentences fall within the statutory range for aggravated assault with a deadly weapon, a

first-degree felony, and fraudulent use or possession of identifying information 10-50

items, a second-degree felony that was enhanced to a first-degree felony in this case. See

TEX. PENAL CODE ANN. §§ 22.02(b), 32.51(c)(3); see also id. §§ 12.32 (West 2011) (providing

that the punishment range for first-degree felonies is “imprisonment in the Texas

Department of Criminal Justice for life or for any term of not more than 99 years or less

than 5 years”), 12.42(b) (West Supp. 2015). Additionally, Sheets’s twenty-year sentence

for evading arrest with a vehicle with a deadly weapon is not excessive because the

underlying offense is a third-degree felony that was enhanced to a second-degree felony.

See id. §§ 12.33(a) (West 2011) (“An individual adjudged guilty of a felony of the second

degree shall be punished by imprisonment . . . for any term of not more than 20 years or

less than 2 years.”), 38.04(b)(2). And finally, Sheets’s theft offense constituted a state-jail

felony, which carried a jail sentence of 180 days to two years’ incarceration in a state jail.

See id. §§ 31.03(e)(4)(A). Clearly, Sheets’s 180-day sentence fell within the prescribed

punishment range. See id. § 12.35(a) (West Supp. 2015).

        The trial court’s decision to impose any punishment within the prescribed range

is essentially “unfettered.” Ex parte Chavez, 213 S.W.3d 320, 323 (Tex. Crim. App. 2006).


Sheets v. State                                                                          Page 4
Punishment imposed within the statutory range is generally not subject to challenge for

excessiveness. See Dale v. State, 170 S.W.3d 797, 799 (Tex. App.—Fort Worth 2005, no pet.)

(“Generally, punishment assessed within the statutory limits is not excessive, cruel, or

unusual punishment.”). Therefore, based on the foregoing, we overrule Sheets’s sole

issue on appeal.

                                     III.   CONCLUSION

        We affirm the judgments of the trial court.




                                                 AL SCOGGINS
                                                 Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Affirmed
Opinion delivered and filed June 2, 2016
Do not publish
[CR25]




Sheets v. State                                                                     Page 5
