Dudley Hickman v. State

NO. 12-07-00019-CR IN THE COURT OF APPEALS TWELFTH COURT OF APPEALS DISTRICT TYLER, TEXAS DUDLEY HOWARD HICKMAN, § APPEAL FROM THE 114TH APPELLANT V. § JUDICIAL DISTRICT COURT OF THE STATE OF TEXAS, APPELLEE § SMITH COUNTY, TEXAS MEMORANDUM OPINION Dudley Howard Hickman appeals from his conviction for sexual assault of a child for which the jury sentenced him to a fifteen year prison term and a $5,000.00 fine. In one issue, Appellant asserts that the evidence is factually insufficient to support the sentence. We affirm. Background Appellant entered a plea of guilty to the offense of sexual assault of a child and elected to have a jury trial on the issue of punishment. The jury assessed Appellant’s punishment at imprisonment for fifteen years and a $5,000.00 fine. The trial court sentenced Appellant accordingly, and this appeal followed. Factual Sufficiency of Evidence as to Punishment In his sole issue, Appellant contends that the evidence is factually insufficient to support the sentence imposed. A review of the evidence for factual sufficiency is inappropriate with respect to the assessment of punishment. See Bradfield v. State, 42 S.W.3d 350, 351 (Tex. App.–Eastland 2001, pet. ref’d); Kanouse v. State, 958 S.W.2d 509, 510 (Tex. App.–Beaumont 1998, no pet.); Flores v. State, 936 S.W.2d 478, 479 (Tex. App.–Eastland 1996, pet. ref’d). Therefore, we decline to conduct a factual sufficiency review of the evidence on punishment. The general rule is that as long as a sentence is within the statutory range, it will not be disturbed on appeal. See Gerhardt v. State, 935 S.W.2d 192, 196 (Tex. App.–Beaumont 1996, no pet.). The punishment for sexual assault of a child is imprisonment for not more than twenty years or less than two years and a fine of up to $10,000.00. Tex. Penal Code Ann. §§ 12.33, 22.011(f) (Vernon 2003 & Supp. 2007). Since Appellant’s fifteen year term and $5,000.00 fine fall within the permissible range set forth by the legislature, we will not disturb it. Appellant has not raised any issue contending that his sentence amounted to cruel and unusual punishment. We overrule Appellant’s sole issue. Disposition Having overruled Appellant’s sole issue, we affirm the trial court’s judgment. JAMES T. WORTHEN Chief Justice Opinion delivered March 31, 2008. Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J. (DO NOT PUBLISH)