Willie Upshaw v. State ( 2007 )

                                                NO. 12-07-00090-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

WILLIE UPSHAW,   §                      APPEAL FROM THE 114TH

APPELLANT

V.        §                      JUDICIAL DISTRICT COURT OF

THE STATE OF TEXAS,

APPELLEE   §                      SMITH COUNTY, TEXAS

MEMORANDUM OPINION

            Willie Upshaw appeals his sentence of imprisonment for sixteen years he received following his conviction for aggravated assault.  In one issue, Appellant argues that the evidence is factually insufficient to support his punishment.  We affirm.

Background

            Appellant was charged by indictment with aggravated assault with a deadly weapon. Appellant pleaded “guilty” as charged, and the matter proceeded to a trial on punishment before a jury.  Ultimately, the jury assessed Appellant’s punishment at imprisonment for sixteen years.  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 was factually insufficient to support his sentence.  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).  Hence, 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.) (citing Jackson v. State, 680 S.W.2d 809, 814 (Tex. Crim. App.1984)).  The punishment for aggravated assault with a deadly weapon is a term of imprisonment ranging between two and twenty years and a fine not to exceed ten thousand dollars.  See Tex. Penal Code Ann. §§ 12.33, 22.02(b), (Vernon 2003 & Supp. 2006).  Since Appellant’s sixteen year sentence falls 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.  Appellant’s sole issue is overruled.

Disposition

            Having overruled Appellant’s sole issue, we affirm the trial court’s judgment.

                                                                                                    BRIAN HOYLE   

                                                                                                               Justice

Opinion delivered August 30, 2007.

Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.

(DO NOT PUBLISH)