Robert Cherry v. State

• Court: Court of Appeals of Texas
• Decided: January 2, 2008
• Docket: 10-06-00370-CR
• Status: Published

Opinion

IN THE

TENTH COURT OF APPEALS

 

No. 10-06-00370-CR

Robert Cherry,

                                                                                    Appellant

 v.

The State of Texas,

                                                                                    Appellee

From the 278th District Court

Walker County, Texas

Trial Court No. 20754

MEMORANDUM  Opinion

        Cherry appeals his sentence for state-jail-felony theft.  See Tex. Penal Code Ann. § 31.03(a) (Vernon 2003); Act of May 28, 2003, 78th Leg., R.S., ch. 393, § 20, sec. (4), 2003 Tex. Gen. Laws 1633, 1639 (amended 2007) (current version at Tex. Penal Code Ann. § 31.03(e)(4) (Vernon Supp. 2007)).  We affirm.

        In Cherry’s second issue, he contends that the trial court’s sentence was unconstitutionally cruel and unusual.  See U.S. Const. amend. VIII.  In Cherry’s first issue, he contends that he preserved that complaint. 

        Texas Rule of Appellate Procedure 33.1 provides:

       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 request, objection, or motion that . . . stated the grounds for the ruling that the complaining party sought from the trial court with sufficient specificity to make the trial court aware of the complaint, unless the specific grounds were apparent from the context . . . .

Tex. R. App. P. 33.1(a); see Cruz v. State, 225 S.W.3d 546, 548 (Tex. Crim. App. 2007).  Rule 33.1 is a “‘judge-protecting’ rule[] of error preservation.”  Reyna v. State, 168 S.W.3d 173, 177 (Tex. Crim. App. 2005).  “The issue . . . ‘is . . . whether the complaining party on appeal brought to the trial court’s attention the very complaint that party is now making on appeal.’”  Id. (quoting Martinez v. State, 91 S.W.3d 331, 336 (Tex. Crim. App. 2002)).  “Except for complaints involving systemic (or absolute) requirements, or rights that are waivable only . . . all other complaints, whether constitutional, statutory, or otherwise, are forfeited by failure to comply with Rule 33.1(a).”  Neal v. State, 150 S.W.3d 169, 175 (Tex. Crim. App. 2004) (quoting Mendez v. State, 138 S.W.3d 334, 342 (Tex. Crim. App. 2004)); see Barnett v. State, 189 S.W.3d 272, 278 n.15 (Tex. Crim. App. 2006); Marin v. State, 851 S.W.2d 275, 278-80 (Tex. Crim. App. 1993). 

[A]ll a party has to do to [preserve error] is to let the trial judge know what he wants, why he thinks himself entitled to it, and to do so clearly enough for the judge to understand him at a time when the trial court is in a proper position to do something about it.

Saldano v. State, 232 S.W.3d 77, 88 (Tex. Crim. App. 2007), petition for cert. filed, ___ U.S.L.W. ____ (U.S. Nov. 19, 2007) (No. 07-7815) (Tex. Crim. App. quoting Lankston v. State, 827 S.W.2d 907. 909 (Tex. Crim. App. 1992)) (2d alteration in Saldano).  “A general objection preserve[s] nothing for review and is not sufficient to apprise the trial court of the complaint urged.”  Fierro v. State, 706 S.W.2d 310, 318 (Tex. Crim. App. 1986); accord Lasher v. State, 202 S.W.3d 292, 293 (Tex. App.—Waco 2006, pet. ref’d).

        “An appellant who fails to complain in the trial court that a sentence is cruel and unusual forfeits the issue on appeal.”  Williams v. State, No. 10-05-00388-CR, 2006 Tex. App. LEXIS 8282, at *1 (Tex. App.—Waco Sept. 20, 2006, no pet.) (mem. op.) (not designated for publication) (quoting Gravens v. State, No. 10-05-00019-CR, 2006 Tex. App. LEXIS 1085, at *8 (Tex. App.—Waco Feb. 8, 2006, no pet.) (mem. op.) (not designated for publication)); see Rhoades v. State, 934 S.W.2d 113, 120 (Tex. Crim. App. 1996); Wise v. State, 223 S.W.3d 548, 554 (Tex. App.—Amarillo 2007, pet. ref’d).

        Cherry contends that his statement, “I’d like to appeal that, your Honor,” in response to the trial judge’s asking whether there was any reason sentence should not then be imposed, preserved his second issue.  (Br. at 4 (quoting C.R. at 80).)  Cherry’s statement did not apprise the trial court of the cruel-and-unusual-punishment complaint that Cherry argues on appeal.^[1]

        We overrule Cherry’s first issue.  We need not reach Cherry’s second issue.

        Having overruled Cherry’s first issue, we affirm.

TOM GRAY

Chief Justice

        Before Chief Justice Gray,

        Justice Vance, and

        Justice Reyna

        (Justice Vance concurs in the judgment)

Affirmed

Opinion delivered and filed January 2, 2008

Do not publish

[CR25]

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                [1] The trial court sentenced Cherry to 730 days’ confinement in a state-jail facility.