Kenyone Lamont Johnson AKA Kenyone L. Johnson v. State

• Court: Court of Appeals of Texas
• Decided: November 14, 2012
• Docket: 08-11-00124-CR
• Status: Published

Opinion

COURT OF APPEALS EIGHTH DISTRICT OF TEXAS EL PASO, TEXAS

' KENYONE LAMONT JOHNSON No. 08-11-00124-CR A/K/A KENYONE L. JOHNSON, ' Appeal from Appellant, ' 213th District Court v. ' of Tarrant County, Texas ' THE STATE OF TEXAS, ' (TC # 1197728D) Appellee.

OPINION

Kenyone Lamont Johnson a/k/a Kenyone L. Johnson appeals his conviction of possession

of at least four grams but less than 400 grams of methylenedioxy methamphetamine (commonly

known as Ecstasy), enhanced by a prior felony conviction.1 Appellant waived his right to a jury

trial and entered an open plea of guilty and a plea of true to the enhancement paragraph. The

trial court found Appellant guilty, found the enhancement paragraph true, and assessed

Appellant’s punishment at imprisonment for a term of fifteen years. We affirm.

PUNISHMENT

In his sole point of error, Appellant contends that the trial court abused its discretion by

sentencing him to serve a prison term of fifteen years. Appellant concedes that his sentence is

within the applicable range of punishment but he argues that the trial court failed to consider

Appellant’s acceptance of responsibility in addition to his behavior while on bond, his work

history, and his family responsibilities. The State responds that Appellant failed to preserve the

1 This appeal was transferred from the Second Court of Appeals pursuant to a docket equalization order entered by the Texas Supreme Court. See TEX.GOV’T CODE ANN. § 73.001 (West 2005). We have applied precedent of the Fort Worth Court of Appeals. See TEX.R.APP.P. 41.3. issue because he did not object at the time of sentencing or in a post-trial motion.

To preserve a complaint for appellate review, the record must show Appellant made a

timely and specific request, objection, or motion. See TEX.R.APP.P. 33.1(a)(1). As a general

rule, an appellant may not assert error pertaining to his sentence or punishment where he failed

to object or otherwise raise such error in the trial court. Mercado v. State, 718 S.W.2d 291, 296

(Tex.Crim.App. 1986). Even constitutional rights, such as the right to be free from cruel and

unusual punishment, may be waived. See Rhoades v. State, 934 S.W.2d 113, 120

(Tex.Crim.App. 1996); Curry v. State, 910 S.W.2d 490, 498 (Tex.Crim.App. 1995). Thus, a

criminal defendant must preserve a complaint that the trial court abused its discretion with regard

to the punishment assessed or that his sentence is grossly disproportionate by presenting to the

trial court a timely request, objection, or motion stating the specific grounds for the ruling

desired. Kim v. State, 283 S.W.3d 473, 475 (Tex.App.-- Fort Worth 2009, pet. ref’d). Appellant

did not object when the trial court sentenced him and he did not file a motion for new trial

raising the sentencing issue. Consequently, he failed to preserve the issue for review. See Kim,

283 S.W.3d at 475. We overrule Point of Error One and affirm the judgment of the trial court.

November 14, 2012 _______________________________________________ ANN CRAWFORD McCLURE, Chief Justice

Before McClure, C.J., Rivera, and Antcliff, JJ.

(Do Not Publish)

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