AFFIRM; Opinion issued November 14, 2012.
In The
(tourt ot $tppca1
I iftlj itritt of xa at afta
No. 05-12-00364-CR
BENJAMIN GERROD MURPHY, Appellant
V.
THE STATE OF TEXAS, Appdllee
On Appeal from the 282nd Judicial District Court
I)allas County, Texas
Trial Court Cause No. F11-41363-S
MEMORANDUM OPINION
Before Justices Moseley, Fillmore. and Myers
Opinion by Justice Fillmore
Benjamin Gerrod Murphy waived a jury and pleaded guilty to injury to a child. See TEX.
PENAL CODE 22.04(a) (West 2011). The trial court assessed punishment at five years’
imprisonment. In a single issue, Murphy contends the trial court abused its discretion by
sentencing him to imprisonment. We affirm the trial court’s judgment. The background of the
case and the evidence 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 because the law to be applied in the case is well settled.
Murphy contends the trial court abused its discretion by sentencing him to imprisonment
because the punishment violates the objectives of the penal code. Murphy asserts that because
lie did not intentionally hann the child and lie received deterred probation in a different case, he
shonld have received probation rather than a prison term. The State responds that Murphy failed
to preserve this issue for appellate review and, alternatively, the record does not show the
sentence violates the ohjectives ot the penal code.
Murphy did not complain about the sentence either at the time it was imposed or in a
motion for new trial .5cc TEx. R. APP. P. 33. l(( 1): Castaneda v. State. 135 S.W.3d 719, 723
(Tex. App.—Dallas 2003, no pet.) (to preserve error, appellant must make a timely request,
objection. 01. motion). As a result. Murphy has not preserved the issue for our review.
Additionally, as a general rule, punishment that is assessed within the statutory range for
an offense is not excessive or unconstitutionally cruel or unustial. Kirk v. State, 949 S.W.2d 769,
772 (Tex. App.—Dallas 1997, pet. ref’d). The punishment range for injury to a child, a third-
degree felony olense. is two to ten years’ imprisonment. .5cc TEx. PENAL CoDE ANN. § 12.34,
22.04(f). Murphy’s five-year sentence is within the statutory range.
We conclude the trial court did not abuse its discretion by assessing the five-year
sentence. See Jackson r. State, 68() S.W.2d 809, 814 (Tex. Crim. App. 1984). We overrule
Murphy’s sole issue.
We affirm the trial court’s judgment. /‘
ROBERT M. FILLMORE
JUSTICE
Do Not Publish
TEx. R. APP. P.47
1 20364F.U05
-2-
/
Qiourt of Ztppca1
jiftlj Ottrict of Exa at alla
JUDGMENT
BENJAMIN GERROD MURPHY, Appeal from the 282nd Judicial District
Appellant Court of Dallas County, Texas (Tr.Ct.No.
El l-41463-S.
No. 1)5-1 2-00364-CR V. Opinion delivered h Justice Fillmore,
Justices Moseley and Myers participating.
THE STATE OF TEXAS, Appellec
Based on the Court’s opinion of this date, the trial court’s judgment is AFFIRMED.
Jud2ment entered November 14, 2012.
ROBERT M. FILLMORE
JUSTICE