       TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-04-00216-CR



                                 Randall Wynn Blue, Appellant

                                                 v.

                                  The State of Texas, Appellee




  FROM THE DISTRICT COURT OF TOM GREEN COUNTY, 119TH JUDICIAL DISTRICT
        NO. B-03-0543-S, HONORABLE BEN WOODWARD, JUDGE PRESIDING



                             MEMORANDUM OPINION


                Appellant Randall Wynn Blue pleaded guilty to two counts of assault against a family

member, enhanced by a previous family assault. See Tex. Pen. Code Ann. § 22.01(a)(1), (b)(2)

(West Supp. 2004-05). After hearing testimony relevant to sentence, the court assessed a seven-year

prison term. We affirm the judgment.

                Appellant contends that his Sixth Amendment confrontation right was violated by the

admission in evidence of the complainant’s out-of-court statements to a police officer and to a

hospital nurse.1 U.S. Const. amend. VI. The statements were admitted over appellant’s hearsay

objections under the excited utterance and medical treatment exceptions. See Tex. R. Evid. 803(2),

(4). Appellant did not object on confrontation grounds, and thus failed to preserve his Sixth



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       The complainant did not testify.
Amendment contention for appeal. Tex. R. App. P. 33.1(a); Tex. R. Evid. 103(a). Even

constitutional error may be waived by a failure to object. Briggs v. State, 789 S.W.2d 918, 924 (Tex.

Crim. App. 1990). Point of error two is overruled.

               Appellant’s other complaint is that the seven-year sentence is excessive and thus an

abuse of the trial court’s discretion. He concedes that as a general rule, a sentence within the range

prescribed for the offense will not be disturbed on appeal. See Nunez v. State, 565 S.W.2d 536, 538

(Tex. Crim. App. 1978); Samuel v. State, 477 S.W.2d 611, 614 (Tex. Crim. App. 1972). Appellant

does not explain why his case should be an exception to this rule. Point of error one is overruled.

               The judgment of conviction is affirmed.




                                               __________________________________________

                                               Jan P. Patterson, Justice

Before Chief Justice Law, Justices Patterson and Puryear

Affirmed

Filed: July 12, 2005

Do Not Publish




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