NUMBER 13-00-520-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI

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JUDE CHARLES SIMMONS , Appellant,

v.

THE STATE OF TEXAS , Appellee.

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On appeal from the 36th District Court of San Patricio County, Texas.

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O P I N I O N

Before Chief Justice Valdez and Justices Yañez and Kennedy ⁽¹⁾

Opinion by Justice Kennedy

Appellant was indicted for aggravated robbery. He pleaded guilty and chose a jury to assess his punishment. After hearing evidence, the jury assessed punishment at confinement for forty years. Appellant's one point of error alleges that the punishment assessment was disproportionate to the seriousness of the offense. He argues that the punishment assessed constitutes cruel and unusual punishment as forbidden by the State and Federal Constitutions.

It is well settled that the benchmark to judge excessive incarceration is whether the punishment assessed is within the limit prescribed by statute. Lombardo v. State, 503 S.W.2d 780, 784 (Tex. Crim. App. 1974). Aggravated robbery is a first degree felony. Tex. Penal Code Ann. Sec. 29.03(b) (Vernon's Supp. 2000). The penalty prescribed therefor is imprisonment for life or for any term of not more than ninety-nine years or less then five years, together with a fine of not more than $10,000. Tex. Penal Code Ann. Sec. 13.32 (Vernon's Supp. 2000).

The penalty assessed is within the range prescribed by statute; therefore, the point of error has no merit and we overrule it. We AFFIRM the judgment of the trial court.

Noah Kennedy

Retired Justice

Do not publish. Tex. R. App. P. 47.3.

Opinion delivered and filed

this the 16^th day of August, 2001.

1. Retired Justice Noah Kennedy assigned to this Court by the Chief Justice of the Supreme Court of Texas pursuant to Tex. Gov't Code Ann. § 74.003 (Vernon 1998).