Patrick Walker v. State

Opinion

In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

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No. 06-08-00017-CR

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PATRICK LEE WALKER, Appellant V.

THE STATE OF TEXAS, Appellee

On Appeal from the 124th Judicial District Court Gregg County, Texas

Trial Court No. 34851-B

Before Morriss, C.J., Carter and Moseley, JJ.

Memorandum Opinion by Justice Carter

MEMORANDUM OPINION

Patrick Lee Walker has appealed from his open plea of guilty to the offense of theft over $1,500.00. He was sentenced by the trial court to one year's confinement.

On appeal, Walker contends that his sentence is disproportionate to the crime and violates societal norms, thus violating the Eighth Amendment, citing Kennedy v. Louisiana, ___ U.S. ___, 128 S.Ct. 2641 (2008). To preserve such complaint for appellate review, Walker 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, 523–24 (Tex. App.—Texarkana 2005, no pet.); Delacruz v. State, 167 S.W.3d 904 (Tex. App.—Texarkana 2005, no pet.)), Walker's motion for new trial did not contain an allegation that the sentence was disproportionate to the offense. He has not preserved such an issue for appeal.

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Therefore, we affirm the trial court's judgment.

Jack Carter

Justice

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

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