Timothy Wayne Drew v. State

• Court: Court of Appeals of Texas
• Decided: May 24, 2012
• Docket: 14-12-00069-CR
• Status: Published

Opinion

Affirmed and Memorandum Opinion filed May 24, 2012.

In The

Fourteenth Court of Appeals ____________

NO. 14-12-00069-CR ____________

TIMOTHY WAYNE DREW, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 252nd District Court Jefferson County, Texas Trial Court Cause No. 09-07947

MEMORANDUM OPINION

Appellant entered a guilty plea to credit /debit card abuse. In accordance with the terms of a plea bargain agreement with the State, the trial court deferred adjudicating guilt and placed appellant under community supervision for two years. Subsequently, the State moved to adjudicate. Appellant entered a plea of true to two allegations. The trial court found the allegations true, adjudicated guilt, and sentenced appellant to confinement for two years in the State Jail Division of the Texas Department of Criminal Justice. In his first issue, appellant claims the sentence of two years was cruel and unusual. Appellant concedes that his sentence was within the applicable statutory range but complains he received the maximum allowed. To preserve for appellate review a complaint that a sentence is grossly disproportionate, constituting cruel and unusual punishment, a defendant must present to the trial court a timely request, objection, or motion stating the specific grounds for the ruling desired. See Tex. R. App. P. 33.1(a); Rhoades v. State, 934 S.W.2d 113, 120 (Tex. Crim. App.1996) (defendant waived any error because he presented his argument for first time on appeal); Jagaroo v. State, 180 S.W.3d 793, 802 (Tex. App. -- Houston [ 14th Dist.] 2005, pet. ref'd) (defendant did not raise complaints that his sentences violated his state and federal rights against cruel and unusual punishment in the trial court, and thus failed to preserve them for appellate review). The claim presented on appeal was not raised when appellant was sentenced or in a post-verdict motion filed with the trial court. Accordingly, nothing is preserved for our review. See Castaneda v. State, 135 S.W.3d 719, 723 (Tex. App. -- Dallas 2003, no pet.). Appellant's first issue is overruled.

Appellant's second issue asserts trial counsel was ineffective for failing to object or file a motion challenging the sentence. "Texas courts have traditionally held that as long as the punishment is within the range prescribed by the Legislature in a valid statute, the punishment is not excessive, cruel, or unusual." Buchanan v. State, 68 S.W.3d 136, 141 (Tex. App. -- Texarkana 2001, no pet.). See also Jordan v. State, 495 S.W.2d 949, 952 (Tex. Crim. App. 1973). Appellant's sentence is within the applicable statutory range. See Tex. Pen. Code § 32.31(b)(4) and (d); and Tex. Pen. Code § 12.35(a). Accordingly, trial counsel's failure to object or file a motion challenging appellant's sentence of two years does not constitute deficient representation and appellant has not satisfied the first prong of Strickland. Strickland v. Washington, 466 U.S. 668, 688, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Issue two is overruled.

2 Having overruled all of appellant's issues, we affirm the judgment of the trial court.

PER CURIAM

Panel consists of Chief Justice Hedges and Justices Seymore and Brown. Do not publish - TEX. R. APP. P. 47.2(b).