Clayton Eugene Turner v. State

Opinion

IN THE

TENTH COURT OF APPEALS

No. 10-12-00256-CR

CLAYTON EUGENE TURNER, Appellant

v.

THE STATE OF TEXAS, Appellee

From the 18th District Court Johnson County, Texas

Trial Court No. F45450

MEMORANDUM OPINION

Pursuant to a plea bargain, Clayton Eugene Turner pled guilty to the felony offense of assault-family violence, enhanced and sentenced to 10 years in prison. See TEX. PENAL CODE ANN. § 22.01(b)(2)(A) (West 2011). His sentence was suspended and he was placed on community supervision for five years. After Turner committed new offenses and was unsuccessfully discharged from an intermediate sanction facility, the trial court revoked Turner’s community supervision and sentenced him to 10 years in prison. Because Turner’s issues are not preserved for review, we affirm the trial court’s judgment.

In two issues, Turner complains that the trial court’s sentence of 10 years violates the 8th Amendment’s prohibition to cruel and unusual punishments because it was grossly disproportionate to the crime (issue one) and the 14th Amendment’s due process provision because the trial court failed to consider the full range of punishment and assessed a predetermined sentence on revocation (issue two). See U.S. CONST. amends. VIII & XIV. However, Turner never objected to the sentence he received nor did he file a motion for new trial on the basis that his sentence violated the 8th or 14th Amendments. Accordingly, we find that Turner’s complaints were not presented to the trial court and are not preserved for our review. TEX. R. APP. P. 33.1(a)(1)(A); Wilson v. State, 71 S.W.3d 346, 349 (Tex. Crim. App. 2002); Broxton v. State, 909 S.W.2d 912, 918 (Tex. Crim. App. 1995) (reviewing court will not consider errors, even of constitutional magnitude, not called to the trial court's attention). See also Rhoades v. State, 934 S.W.2d 113, 120 (Tex. Crim. App. 1996) (holding that complaint relating to constitutional prohibition against cruel and unusual punishment was waived when no objection on this basis was made in trial court); Hull v. State, 67 S.W.3d 215, 216-218 (Tex. Crim. App. 2002) (same regarding due process complaint). Because Turner’s issues are not preserved, they are overruled.

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The trial court’s judgment is affirmed.

TOM GRAY

Chief Justice

Before Chief Justice Gray, Justice Davis, and Justice Scoggins Affirmed Opinion delivered and filed September 12, 2013 Do not publish [CR25]

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