Daniel Dee Makin v. State

• Court: Court of Appeals of Texas
• Decided: November 7, 2014
• Docket: 10-14-00044-CR
• Status: Published

Opinion

IN THE TENTH COURT OF APPEALS

No. 10-14-00044-CR

DANIEL DEE MAKIN, Appellant v.

THE STATE OF TEXAS, Appellee

From the 272nd District Court Brazos County, Texas Trial Court No. 08-03139-CRF-272

MEMORANDUM OPINION

Daniel Makin appeals from a revocation of his community supervision for the

offense of theft of copper valued at less than $20,000, for which he was sentenced to two

years' imprisonment in the state jail. TEX. PEN. CODE ANN. § 31.03 (e)(4)(F)(iii) (West

2011). Makin complains that the sentence imposed was excessive pursuant to the

Eighth Amendment of the U.S. Constitution and Article I, Section 3 of the Texas

Constitution. Because we find that this complaint was not preserved, we affirm the

judgment of the trial court. Makin argues that the imposition of the maximum sentence for a state jail felony

was excessive and grossly disproportionate to the offense and the violations of Makin's

community supervision pursuant to the Eighth Amendment. An appellant must make

an objection in the trial court for us to review this issue for error on appeal. TEX. R. APP.

P. 33.1(a). Claims of cruel and unusual punishment can be waived if not brought before

the trial court. See Rhoades v. State, 934 S.W.2d 113, 120 (Tex. Crim. App. 1996) (failure to

raise a challenge to sentence under the Eighth Amendment to the U.S. Constitution in

the trial court leads to waiver on appeal); Noland v. State, 264 S.W.3d 144, 151-52 (Tex.

App.—Houston [1st Dist.] 2007, pet. ref'd) (waiver of cruel and unusual punishment

claim occurred because no objection was made at trial).

Makin did not raise any objection to the punishment at the trial court either at

the time of sentencing or in a motion for new trial. As a result, he has waived this

complaint. See TEX. R. APP. P. 33.1(a); Rhoades, 934 S.W.2d at 120. We overrule Makin's

sole issue.

Conclusion

Having found that Makin did not preserve his sole issue, we affirm the judgment

of the trial court.

TOM GRAY Chief Justice

Makin v. State Page 2 Before Chief Justice Gray, Justice Davis, and Justice Scoggins Affirmed Opinion delivered and filed October 30, 2014 Do not publish [CR25]

Makin v. State Page 3