Raymond Earl Randle, Jr. v. State

• Court: Court of Appeals of Texas
• Decided: June 8, 2006
• Docket: 13-05-00160-CR
• Status: Published

Opinion

                             NUMBER 13-05-160-CR

                         COURT OF APPEALS

               THIRTEENTH DISTRICT OF TEXAS

                  CORPUS CHRISTI - EDINBURG

RAYMOND EARL RANDLE, JR.,                                                                                  Appellant,

                                           v.

THE STATE OF TEXAS,                                              Appellee.

                   On appeal from the 24th District Court

                           of Victoria County, Texas.

                     MEMORANDUM OPINION

      Before Chief Justice Valdez and Justices Rodriguez and Garza

Memorandum Opinion by Justice Rodriguez

Appellant, Raymond Earl Randle, Jr., was charged with aggravated kidnapping.  See Tex. Pen. Code Ann. ' 20.04 (Vernon 2003).  A jury found appellant guilty, and the trial court assessed punishment at confinement for twenty years in the Texas Department of Criminal Justice-Institutional Division and a fine of $2,000.  The trial court has certified that this case Ais not a plea bargain case, and the defendant has the right of appeal.@  See Tex. R. App. P. 25.2(a)(2).  Through his sole point of error, appellant contends that his sentence is cruel and unusual because it is disproportionate to his involvement in the kidnapping.  We affirm.

I.  Background

All issues of law presented by this case are well-settled, and the parties are familiar with the facts.  Therefore, we will not recite the law or the facts except as necessary to advise the parties of the Court=s decision and the basic reasons for it.  See Tex. R. App. P. 47.4.

II.  Cruel and Unusual Punishment

By his sole point of error, appellant contends that his sentence of twenty years= imprisonment is cruel and unusual because it is disproportionate to his involvement in the kidnapping.  The State asserts that appellant failed to preserve error, and therefore he waived his right to appeal his sentence.  

As a prerequisite to presenting a complaint for appellate review, the record must show that the complaint was made to the trial court by a timely objection or motion.  Tex. R. App. P. 33.1(a).  It is well-settled that Aalmost every right, constitutional and statutory, may be waived by a party=s failure to object.@  Smith v. State, 721 S.W.2d 844, 855 (Tex. Crim. App. 1986).  Moreover, this Court has held that failing to complain that a sentence is cruel and unusual, either by objection during the punishment phase of trial or by a motion for new trial, waives the error.  Quintana v. State, 777 S.W.2d 474, 479 (Tex. App.CCorpus Christi 1989, pet. ref'd).

Thus, in order to have preserved his complaint for appellate review, appellant had to (1) make a timely objection to the sentence imposed by the trial court, complaining that his sentence was cruel and unusual, or (2) raise his complaint in a motion for new trial.  See Tex. R. App. P. 33.1(a); see also Quintana, 777 S.W.2d at 479.  The record, however, shows that appellant (1) failed to object to the sentence assessed by the trial court, and (2) failed to file a motion for new trial complaining that his sentence was cruel and unusual.  Therefore, we conclude appellant failed to preserve error.  We overrule appellant=s sole point of error.

III. Conclusion

Accordingly, we affirm the judgment of the trial court.

NELDA V. RODRIGUEZ

Justice

Do not publish.

Tex. R. App. P. 47.2(b).

Memorandum Opinion delivered and

filed this 8th day of June, 2006.