Kim v. State

283 S.W.3d 473, 2009 Tex. App. LEXIS 2140, 2009 WL 806898

• Court: Court of Appeals of Texas
• Decided: March 26, 2009
• Docket: 2-08-406-CR
• Status: Published

Opinions

OPINION

BOB McCOY, Justice.

I. Introduction

In two issues, Appellant Edwin Woo Jin Kim appeals his conviction for burglary of a habitation. We affirm.

II. Factual and Procedural History

This is the oft-told tale of buyer’s remorse. On February 4, 2005, Kim pleaded guilty to the offense of burglary of a habitation. The trial court deferred adjudicating Kim’s guilt and placed him on deferred adjudication community supervision for six years. On March 17, 2006, the State filed its first motion to proceed to adjudication, alleging that Kim had failed to submit a urine sample as ordered for drug testing, report to his probation officer, and pay court costs and probation fees. A month later, the trial court modified Kim’s community supervision and ordei'ed him to participate in a substance abuse felony program.

On August 23, 2007, the State filed a second petition to adjudicate Kim’s guilt, alleging that Kim had failed six drug tests, had failed to pay court costs and probation fees, and had failed to attend Alcoholics Anonymous meetings and counseling sessions. Again, the trial court modified Kim’s community supervision and gave Kim another opportunity to avoid adjudication and possible incarceration.

Nevertheless, on August 8, 2008, the State filed a third petition to adjudicate Kim’s guilt, alleging that Kim again had failed to submit to urine testing for controlled substances, report to his probation officer, and pay court costs, probation fees, and lab fees. The State offered a three-year sentence in exchange for a plea of true. Kim rejected the State’s offer and, instead, entered an open plea to the trial court.¹ Kim answered true to all of the State’s allegations, and he asked the court to allow him to remain on community supervision and to attend Cenikor for drug rehab. The trial judge adjudicated Kim guilty of the burglary offense and sentenced Kim to seven years’ confinement.² Kim made no objections to the sentence and did not file a motion for new trial. This appeal followed.

III. Disproportionate Punishment and Abuse of Discretion Issues Forfeited

In two issues, Kim asserts that the trial court abused its discretion by setting punishment at seven years’ confinement, more than twice as long as the sentence offered by the State, and also argues that the seven-year sentence is disproportionate punishment.

It is axiomatic that errors that are asserted on the part of the trial court must generally be brought to the trial court’s attention in order to afford the trial court an opportunity to correct the error, if any. 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. Tex.R.App. P. 33.1(a); Rhoades v. State, 934 S.W.2d 113, 120 (Tex.Crim.App.1996) (holding complaint of cruel and unusual punishment under Texas Constitution was waived because defendant presented his argument for first time on appeal); Noland v. State, 264 S.W.3d 144, 151-52 (Tex.App.-Houston [1st Dist.] 2007, pet. ref'd) (holding that when appellant failed to object to his sentence at the punishment hearing or to complain about it in his motion for new trial, he failed to preserve his Eighth Amendment complaint that the punishment assessed was “grossly disproportionate and oppressive”); Wynn v. State, 219 S.W.3d 54, 61 (Tex.App.-Houston [1st Dist.] 2006, no pet.) (holding that defendant’s failure to object to his life sentence of imprisonment as cruel and unusual punishment waived error); see also Mercado v. State, 718 S.W.2d 291, 296 (Tex.Crim.App.1986) (stating that, as a general rule, appellant may not assert error pertaining to his sentence or punishment when he failed to object or otherwise raise such error in the trial court).

Kim’s complaint about the alleged dis-proportionality of his sentence was not raised at the time it was imposed or in a motion for new trial. Therefore, he preserved nothing for our review. See Noland, 264 S.W.3d at 151-52; Acosta v. State, 160 S.W.3d 204, 211 (Tex.App.-Fort Worth 2005, no pet.) (holding that defendant forfeited his Texas constitution-based complaint that his sentence was grossly disproportionate); see also Cisneros v. State, No. 2-06-103-CR, 2007 WL 80002, at *1 (Tex.App.-Fort Worth Jan.11, 2007, pet. ref'd) (mem. op., not designated for publication) (collecting cases). We overrule both of Kim’s issues.

Further, even if we were to reach the merits of Kim’s complaint, Kim recognizes in his briefing that punishment imposed within the statutory limits, as here, is generally not subject to challenge for excessiveness. See Dale v. State, 170 S.W.3d 797, 799 (Tex.App.-Fort Worth 2005, no pet.). Subject only to a very limited, “exceedingly rare,” and somewhat amorphous Eighth Amendment gross-dis-proportionality review, a punishment that falls within the legislatively prescribed range, and that is based upon the sentencer’s informed normative judgment, is unassailable on appeal. See Ex parte Chavez, 213 S.W.3d 320, 323-24 (Tex.Crim.App.2006).

IV. Conclusion

Having overruled Kim’s issues, we affirm the trial court’s judgment.

DAUPHINOT, J., filed a concurring and dissenting opinion.

1 . Kim testified that he understood that the trial court could assess punishment anywhere within the punishment range of the offense.

2 . The punishment range for burglary of a habitation, a second degree felony, is two to twenty years' confinement. See Tex. Penal Code Ann. §§ 12.33(a), 30.02(c)(2) (Vernon 2003).