Shawn Richard Boutin v. State

• Court: Court of Appeals of Texas
• Decided: June 26, 2014
• Docket: 13-13-00115-CR
• Status: Published

Opinion

NUMBER 13-13-00115-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

SHAWN RICHARD BOUTIN, Appellant,

v.

THE STATE OF TEXAS, Appellee.

On appeal from the 377th District Court of Victoria County, Texas.

MEMORANDUM OPINION Before Justices Rodriguez, and Justices Garza and Perkes Memorandum Opinion by Justice Perkes Appellant Shawn Richard Boutin pleaded guilty to three counts of aggravated

sexual assault of a child less than six years of age, first-degree felonies, see TEX. PENAL

CODE ANN. § 22.021(a)(1)(B)(i, iii, and iv), (2)(B) and 22.021(f)(1) (West, Westlaw through

2013 3d C.S.), and a single count of continuous sexual abuse of a young child, a first-

degree felony. See id, § 21.02 (West, Westlaw through 2013 3d C.S.). Bench trial found appellant guilty and assessed punishment for each of the four counts at life

imprisonment in the Texas Department of Criminal Justice, Institutional Division. The

sentences are to run concurrently. Appellant appeals his life sentences on the basis of

cruel and unusual punishment. We affirm.

I. PRESERVATION

By his sole issue on appeal, appellant argues the trial court’s assessment of four

concurrent life sentences constitutes cruel and unusual punishment in view of the

evidence presented by the defense. See U.S. CONST. amend VIII; TEX. CONST. art. 1, §

13.

To preserve error for appellate review, an appellant must make a timely, specific

request, objection, or motion and obtain a ruling from the trial court. TEX. R. APP. P. 33.1.

“This requirement applies even to errors of constitutional dimension, including those

asserting that a sentence is cruel and unusual.” Richardson v. State, 328 S.W.3d 61, 72

(Tex. App.—Fort Worth 2010, pet. ref’d) (citing Henderson v. State, 962 S.W.2d 544, 548

(Tex. Crim. App. 1997)); see Trevino v. State, 174 S.W.3d 925, 972 (Tex. App.—Corpus

Christi 2005, pet. ref’d).

To preserve an issue at trial by motion for a new trial, a defendant must present

the motion to the trial court. Richardson, 328 S.W.3d at 61 (citing TEX. R. APP. P. 21.6);

Rozell v. State, 176 S.W.3d 228, 230 (Tex. Crim. App. 2005). Filing a motion for a new

trial by itself is insufficient for presentment; a defendant must ensure that the trial court

has actual notice of it. See Rozell, 176 S.W.2d at 230; Carranza v. State, 960 S.W.2d

76, 79–80 (Tex. Crim. App. 1998) (en banc) (interpreting predecessor rule, which is

2 identical to 21.6). Actual notice may be evidenced by the judge’s ruling, signature or

notation on the proposed order, or by a hearing set on the court’s docket. See Carranza,

960 S.W.2d at 79; Richardson, 328 S.W.3d at 61.

Appellant did not object to his sentence at the punishment hearing. Although

appellant did subsequently file a motion for a new trial arguing that his punishment was

cruel and unusual, there is no evidence in the record to show that appellant presented his

new-trial motion to the trial court. Appellant failed to show that the trial court had actual

notice of his motion for a new trial and, as a result, failed to preserve his claim for review.

See TEX. R. APP. P. 21.6, 33.1; Richardson, 328 S.W.3d at 61 (holding defendant’s claim

of cruel and unusual punishment was not preserved where defendant failed to object at

trial and filed but did not present motion for new trial); see also Stewart v. State, No. 13-

12-00221-CR, 2013 WL 3517527, at *4 (Tex. App.—Corpus Christi July 11, 2013, no pet.)

(mem. op., not designated for publication) (same). We overrule appellant’s sole issue

as unpreserved for review on appeal.

II. CONCLUSION

We affirm the trial court’s judgment.

GREGORY T. PERKES Justice

Do not publish. TEX. R. APP. P. 47.2(b).

Delivered and filed the __ 26th day of June, 2014.