Brandon Jay McDonald v. State

• Court: Court of Appeals of Texas
• Decided: November 7, 2014
• Docket: 08-13-00209-CR
• Status: Published

Opinion

COURT OF APPEALS EIGHTH DISTRICT OF TEXAS EL PASO, TEXAS

BRANDON JAY MCDONALD, § No. 08-13-00209-CR Appellant, § Appeal from the v. § 396th Judicial District Court THE STATE OF TEXAS, § of Tarrant County, Texas Appellee. § (TC# 1184931W) §

OPINION

Brandon Jay McDonald appeals his conviction for burglary of a habitation following the

trial court’s revocation of probation. In his sole appellate issue, McDonald contends that his ten-

year sentence, which fell within the statutory range set for burglary of a habitation, constituted

cruel and unusual punishment prohibited by the state and federal constitutions. We affirm.

BACKGROUND

On February 1, 2010, Appellant pleaded guilty to burglary of a habitation. The trial court

assessed a $500 fine, deferred adjudication, and placed Appellant on community supervision for

five years. In May 2013, the State filed a petition to proceed to adjudication, alleging that

Appellant violated the terms of his probation. Appellant entered an open plea of true to all the

allegations contained in the petition. Appellant does not dispute that he pled true to the revocation charges knowingly, voluntarily, and intelligently, and that he was admonished that the

punishment range for burglary of a habitation was between two and twenty years confinement.

The trial court sentenced Appellant to ten years’ in prison. This appeal followed.

DISCUSSION

Appellant concedes that the sentence he received did not constitute an abuse of judicial

discretion under law because it fell within the statutory punishment range set by the Legislature.

Nevertheless, he maintains that the trial court violated his constitutional rights against cruel and

unusual punishment by actually imposing the sentence because the punishment was

disproportionate to the crime, “mitigating factors” existed in the record, and because “Appellant

pled true to the allegations in the motion to adjudicate, therefore[] taking full responsibility to his

actions [sic] while on probation.” Appellant did not explicitly state what those mitigation factors

were.

To challenge a sentence as cruel and unusual punishment, the defendant must object in

the trial court or else his constitutional claim is waived. Harrington v. State, No. 08-13-00224-

CR, 2014 WL 3783960, at *1-*2 (Tex.App.--El Paso July 31, 2014, no pet.)(not designated for

publication)(objection at sentencing or in a motion for new trial necessary to preserve cruel and

unusual punishment error). Here, Appellant entered an open plea of true to all the allegations

contained in the motion to revoke, and he failed to object in the trial court or raise a complaint in

a motion for new trial. As such, Appellant failed to preserve any Eighth Amendment claims and

waived his ability to challenge his sentence. Id.

Issue One is overruled. We affirm the trial court’s judgment.

October 31, 2014 YVONNE T. RODRIGUEZ, Justice

2 Before McClure, C.J., Rodriguez, J., and Barajas, C.J. (Senior Judge) Barajas, C.J. (Senior Judge)(Sitting by assignment, not participating)

(Do Not Publish)