Detion Henderson v. State

• Court: Court of Appeals of Texas
• Decided: March 29, 2019
• Docket: 05-18-00302-CR
• Status: Published

Opinion

AFFIRM; Opinion Filed March 29, 2019

In The Court of Appeals Fifth District of Texas at Dallas No. 05-18-00302-CR

DETION HENDERSON, Appellant V. THE STATE OF TEXAS, Appellee

On Appeal from the 422nd Judicial District Court Kaufman County, Texas Trial Court Cause No. 16-50722-422-F

MEMORANDUM OPINION Before Justices Brown, Schenck, and Pedersen Opinion by Justice Schenck Detion Henderson appeals his conviction for aggravated robbery. We affirm the trial

court’s judgment. Because all issues are settled in law, we issue this memorandum opinion. TEX.

R. APP. P. 47.4.

BACKGROUND

On November 29, 2016, appellant was indicted for aggravated robbery while exhibiting a

deadly weapon. The State later filed a notice of intent to enhance, urging appellant was previously

convicted of the felony offense of aggravated robbery with a deadly weapon. On October 26,

2017, appellant entered an open plea of guilty to the charge contained in the indictment. Before

he entered his plea, the trial judge cautioned him that the punishment range for the charged offense

and the enhancement paragraph was a minimum period of incarceration of 15 years and a

maximum of 99 years or life, with an optional fine not to exceed $10,000. After accepting appellant’s pleas of guilty to the charged offense and true to the enhancement paragraph, the trial

court conducted a hearing to determine appellant’s sentence. At the conclusion of that hearing,

the trial court sentenced appellant to 50 years’ confinement. Appellant filed a motion for new trial,

which was overruled by operation of law. This appeal followed.

DISCUSSION

In his first issue, appellant urges that his sentence violates the Eighth Amendment to the

U.S. Constitution because his sentence was “grossly disproportionate to the crime and

inappropriate to the offender.” In his second issue, appellant maintains his sentence violates

Article I, Section 13 of the Texas Constitution for the same reason.

The State responds that appellant failed to preserve either issue for appeal because he did

not object when he was sentenced and his motion for new trial did not address either complaint.

To preserve error for appellate review, the record must show appellant made a timely

request, objection, or motion. See TEX. R. APP. P. 33.1(a)(1). Constitutional rights, including the

right to be free from cruel and unusual punishment, may be waived. See Bell v. State, 326 S.W.3d

716, 724 (Tex. App.—Dallas 2010, pet. ref’d, untimely filed) (holding appellant failed to preserve

issue his assessed punishment “was grossly disproportionate to his alleged conduct” in violation

of his Eighth Amendment rights); Ajisebutu v. State, 236 S.W.3d 309, 313 (Tex. App.—Houston

[1st Dist.] 2007, pet. ref’d) (holding appellant failed to preserve issue his assessed punishment was

cruel and unusual in violation of Article I, Section 13 of the Texas Constitution). Appellant did

not object when the trial court pronounced his sentence, and his motion for new trial argued only

that his “conviction was contrary to the law and evidence.” Because appellant made no objection

when he was sentenced, and his motion for new trial did not address these complaints, he has not

preserved the issues for appellate review. See id.

Accordingly, we overrule appellant’s first and second issues.

–2– CONCLUSION

We affirm the trial court’s judgment.

/David J. Schenck/ DAVID J. SCHENCK JUSTICE

DO NOT PUBLISH TEX. R. APP. P. 47 180302F.U05

–3– Court of Appeals Fifth District of Texas at Dallas JUDGMENT

DETION HENDERSON, Appellant On Appeal from the 422nd Judicial District Court, Kaufman County, Texas No. 05-18-00302-CR V. Trial Court Cause No. 16-50722-422-F. Opinion delivered by Justice Schenck, THE STATE OF TEXAS, Appellee Justices Brown and Pedersen, III participating.

Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.

Judgment entered this 29th day of March, 2019.

–4–