Jacob Dale Davidson v. State

• Court: Court of Appeals of Texas
• Decided: June 9, 2016
• Docket: 10-15-00414-CR
• Status: Published

Opinion

IN THE TENTH COURT OF APPEALS

No. 10-15-00414-CR

JACOB DALE DAVIDSON, Appellant v.

THE STATE OF TEXAS, Appellee

From the 413th District Court Johnson County, Texas Trial Court No. F45330

MEMORANDUM OPINION

In two issues, appellant, Jacob Dale Davidson, contends that his seven-year prison

sentence is excessive and disproportionate punishment for the offense for which he was

convicted—burglary of a habitation. We affirm.

I. BACKGROUND

In January 2011, appellant was charged by indictment with two counts of burglary

of a habitation. As part of a plea bargain, appellant entered guilty pleas to the charged offenses in exchange for the State’s recommendation of a ten-year prison sentence to be

probated for ten years, as well as other terms and conditions. Among the conditions were

those for sex offenders, although appellant was not required to register as a sex offender.

In any event, the trial court accepted appellant’s guilty pleas, assessed punishment at ten-

years’ incarceration in the Institutional Division of the Texas Department of Criminal

Justice, probated the sentence for ten years, and imposed the terms and conditions

recommended by the State.

Thereafter, on May 11, 2015, the State filed a motion to revoke appellant’s

community supervision, alleging numerous violations. Appellant pleaded “true” to

several of the alleged violations. As a result, the trial court revoked appellant’s

community supervision and assessed punishment at seven years in the Institutional

Division of the Texas Department of Criminal Justice as to one count of burglary of a

habitation. Because the trial court declined to take action on the second burglary-of-a-

habitation count, appellant remains on community supervision as to that count. The trial

court subsequently certified appellant’s right to appeal only the punishment phase on the

motion to revoke. This appeal followed.

II. ANALYSIS

In his issues on appeal, appellant contends that the trial court erred in assessing

his seven-year prison sentence because it is cruel, unusual, and excessive in violation of

the Eighth Amendment and his right to due process. See U.S. CONST. amend. VIII.

Davidson v. State Page 2 A disproportionate-sentence claim must be preserved for appellate review. See

TEX. R. APP. P. 33.1(a)(1); Rhoades v. State, 934 S.W.2d 113, 120 (Tex. Crim. App. 1996)

(noting that constitutional rights, including the right to be free from cruel and unusual

punishment, may be waived); Mercado v. State, 718 S.W.2d 291, 296 (Tex. Crim. App. 1986)

(en banc); see also Noland v. State, 264 S.W.3d 144, 151 (Tex. App.—Houston [1st Dist.]

2007, pet. ref’d) (“[I]n 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.”). To preserve a complaint for review, a party must have presented

to the trial court a timely request, objection, or motion that states the specific grounds for

the desired ruling if they are not apparent from the context of the request, objection, or

motion. TEX. R. APP. P. 33.1(a)(1); Landers v. State, 402 S.W.3d 252, 254 (Tex. Crim. App.

2013); Sample v. State, 405 S.W.3d 295, 300 (Tex. App.—Fort Worth 2013, pet. ref’d).

Further, the trial court must have ruled on the request, objection, or motion, either

expressly or implicitly, or the complaining party must have objected to the trial court’s

refusal to rule. TEX. R. APP. P. 33.1(a)(2); Pena v. State, 353 S.W.3d 797, 807 (Tex. Crim.

App. 2011).

At the sentencing hearing, appellant did not assert his disproportionate-sentence

claims. Moreover, appellant did not file a motion for new trial or otherwise present his

objections to the imposed sentence. As such, appellant has forfeited these complaints.

Davidson v. State Page 3 See TEX. R. APP. P. 33.1(a)(1); Clark v. State, 365 S.W.3d 333, 339 (Tex. Crim. App. 2012);

Noland, 264 S.W.3d at 151-52; see also Garcia v. State, No. 10-12-00041-CR, 2014 Tex. App.

LEXIS 3960, at **3-5 (Tex. App.—Waco Apr. 10, 2014, no pet.) (mem. op., not designated

for publication). We overrule appellant’s issues on appeal.

III. CONCLUSION

We affirm the judgment of the trial court.

AL SCOGGINS Justice

Before Chief Justice Gray, Justice Davis, and Justice Scoggins Affirmed Opinion delivered and filed June 9, 2016 Do not publish [CR25]

Davidson v. State Page 4