Franklin Jackson II v. State

Opinion

In The Court of Appeals Sixth Appellate District of Texas at Texarkana

______________________________

No. 06-08-00016-CR ______________________________

FRANKLIN JACKSON, II, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 124th Judicial District Court Gregg County, Texas Trial Court No. 33443-B

Before Morriss, C.J., Carter and Moseley, JJ. Memorandum Opinion by Justice Moseley MEMORANDUM OPINION

Franklin Jackson, II, has appealed from his plea of "true" to the allegations contained in the

State's motion to revoke his community supervision. Jackson was sentenced by the trial court to

twelve months' confinement.

On appeal, Jackson contends that the court violated the prohibition against cruel and unusual

punishment by disregarding societal norms and sentencing him to incarceration rather than utilizing

other options, citing Kennedy v. Louisiana, ___ U.S. ___, 128 S.Ct. 2641 (2008). He contends this

violates the Eighth Amendment to the United States Constitution and Article I, Section 10 of the

Texas Constitution.

To preserve such complaint for appellate review, Jackson must have presented to the trial

court a timely request, objection, or motion that stated the specific grounds for the desired ruling,

or the complaint must be apparent from the context. See TEX . R. APP . P. 33.1(a)(1); Harrison v.

State, 187 S.W.3d 429, 433 (Tex. Crim. App. 2005); Williams v. State, 191 S.W.3d 242, 262 (Tex.

App.—Austin 2006, no pet.) (claims of cruel and unusual punishment must be presented in timely

manner); Nicholas v. State, 56 S.W.3d 760, 768 (Tex. App.—Houston [14th Dist.] 2001, pet. ref'd)

(failure to complain to trial court that sentences were cruel and unusual waived claim of error for

appellate review). We have reviewed the record of the trial proceeding. No relevant request,

objection, or motion was made. And, while this Court has held that a motion for new trial is an

appropriate way to preserve this type of claim for review (see Williamson v. State, 175 S.W.3d 522,

2 523–24 (Tex. App.—Texarkana 2005, no pet.); Delacruz v. State, 167 S.W.3d 904 (Tex.

App.—Texarkana 2005, no pet.)), Jackson's motion for new trial did not contain an allegation that

the sentence was disproportionate to the offense or that it was cruel and unusual. He has not

preserved such an issue for appeal.

Therefore, we affirm the trial court's judgment.

Bailey C. Moseley Justice

Date Submitted: August 28, 2008 Date Decided: August 29, 2008

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