Eddie D. Payne, Jr. v. State

• Court: Court of Appeals of Texas
• Decided: December 3, 2009
• Docket: 01-09-00221-CR
• Status: Published

Opinion

Opinion issued December 3, 2009

In The

Court of Appeals

For The

First District of Texas

NO. 01-09-00221-CR

EDDIE D. PAYNE, JR., Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 7th District Court

Smith County, Texas

Trial Court Cause No. 007-0332-08

MEMORANDUM OPINION

          Appellant, Eddie D. Payne, Jr., pleaded guilty to felony theft and the trial court assessed punishment at 10 years’ confinement, which it then suspended, placing appellant on 5 years’ community supervision.  Three months later, the State filed a motion to revoke appellant’s community supervision.  After a hearing on the State’s motion, the trial court revoked appellant’s community supervision and assessed punishment at 8 years’ confinement.  In two related points of error, appellant contends that his sentence is unconstitutional.  We affirm.

EXCESSIVE OR DISPROPORTIONATE SENTENCE

Appellant argues that the trial court erred in assessing punishment because its sentence is “disproportionate for the crime committed” and violates the Eighth Amendment of the United States Constitution[1] and article I, section 13 of the Texas Constitution.[2]  

The Eighth Amendment requires that a criminal sentence be proportionate to the crime for which a defendant has been convicted.  Solem v. Helm, 463 U.S. 277, 290, 103 S. Ct. 3001, 3009 (1983) (citing U.S. Const. amend. VIII); see also Baldridge v. State, 77 S.W.3d 890, 893 (Tex. App.—Houston [14th Dist.] 2002, pet. ref’d) (stating that Eighth Amendment has narrow proportionality principle).  The Texas Constitution prohibits “cruel or unusual punishment.” Tex. Const. art. I, § 13.

However, in order to preserve for appellate review a complaint that a sentence is grossly disproportionate, constituting cruel and unusual punishment, a defendant must present to the trial court a timely request, objection, or motion stating the specific grounds for the ruling desired.  See Tex. R. App. P. 33.1(a); Rhoades v. State, 934 S.W.2d 113, 119-20 (Tex. Crim. App. 1996).

Here, after the trial court announced its sentence at the punishment hearing, appellant made no objection to the trial court about the punishment assessed and did not assert his claim under the Eighth Amendment and the Texas Constitution in the trial court.  Accordingly, we hold that appellant has waived his cruel and unusual punishment complaints.  See Ladd v. State, 3 S.W.3d 547, 564 (Tex. Crim. App. 1999) (concluding that defendant did not preserve cruel and unusual punishment complaint for appellate review).

We overrule points of error one and two.

CONCLUSION

We affirm the judgment of the trial court.

                                                          Sherry Radack

                                                          Chief Justice

Panel consists of Chief Justice Radack and Justices Bland and Massengale.

Do not publish.  Tex. R. App. 47.2(b).

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[1]               U.S. Const. amend. 8.

[2]               Tex. Const. art. I , §13.