Terry Mitchell v. State

• Court: Court of Appeals of Texas
• Decided: February 20, 2019
• Docket: 10-18-00178-CR
• Status: Published

Opinion

IN THE TENTH COURT OF APPEALS

No. 10-18-00178-CR

TERRY MITCHELL, Appellant v.

THE STATE OF TEXAS, Appellee

From the 40th District Court Ellis County, Texas Trial Court No. 42879CR

MEMORANDUM OPINION

Terry Wayne Mitchell was convicted of Driving While Intoxicated, a third or more

offense, enhanced, and sentenced to 55 years in prison. See TEX. PENAL CODE ANN. §§

49.04; 49.09 (West 2011). The trial court’s judgment is affirmed.

In two issues, Mitchell contends that his 55-year sentence was grossly

disproportionate to the crime and inappropriate to the offender under the Eighth

Amendment to the United States Constitution and Article I, Section 13 of the Texas

Constitution. See U.S. CONST. amend. VIII; see also TEX. CONST. art. I, § 13. A disproportionate-sentence claim must be preserved for appellate review. See

TEX. R. APP. P. 33.1(a)(1); Rhoades v. State, 934 S.W.2d 113, 120 (Tex. Crim. App. 1996);

Mercado v. State, 718 S.W.2d 291, 296 (Tex. Crim. App. 1986) (en banc); see also Noland v.

State, 264 S.W.3d 144, 151 (Tex. App.—Houston [1st Dist.] 2007, pet. ref’d). At trial,

Mitchell did not object to the imposed sentence. Further, Mitchell did not file a motion

for new trial or otherwise present a post-trial objection to the imposed sentence. Thus,

Mitchell’s complaints in these two issues are not preserved and are overruled.

Having overruled Mitchell’s issues on appeal, we affirm the trial court’s judgment.

TOM GRAY Chief Justice

Before Chief Justice Gray, Justice Davis, and Justice Scoggins1 Affirmed Opinion delivered and filed February 20, 2019 Do not publish [CRPM]

1 The Honorable Al Scoggins, Senior Justice of the Tenth Court of Appeals, sitting by assignment of the Chief Justice of the Texas Supreme Court. See TEX. GOV’T CODE ANN. §§ 74.003, 75.002, 75.003 (West 2013).

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