Tom Hall, Jr. v. State

• Court: Court of Appeals of Texas
• Decided: May 14, 2009
• Docket: 13-07-00060-CR
• Status: Published

Opinion

NUMBER 13-07-00060-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI – EDINBURG

TOM HALL, JR., Appellant,

v.

THE STATE OF TEXAS, Appellee.

On appeal from the 319th District Court of Nueces County, Texas.

MEMORANDUM OPINION Before Justices Yañez, Rodriguez, and Benavides Memorandum Opinion by Justice Benavides

Appellant, Tom Hall, Jr., appeals from a plea of guilty and a trial-court-imposed

sentence of five years in prison. See TEX . PENAL CODE ANN . §§ 49.04 (Vernon 2003),

49.09(b)(2) (Vernon Supp. 2008). On appeal, Hall raises one issue. We affirm. I. BACKGROUND

On January 20, 2006, Hall was arrested for driving while intoxicated. See id. §

49.04. Hall was stopped by the police after he made contact with the bumper of a

motorcyclist who was stopped in traffic. Hall’s blood-alcohol level was 0.24 grams of

alcohol per 100 milliliters, which is three times the legal limit. See id. § 49.01(2)(B) (Vernon

2003).

On January 10, 2007, the trial court held a hearing on Hall’s guilty plea. Hall

testified that he suffers from post-traumatic stress disorder (“PTSD”), for which he receives

full disability payments from the Veterans Administration.1 Additionally, due to kidney

failure, he must receive dialysis three times per week, and he takes approximately ten

medications every day. Hall testified that he attends Alcoholics Anonymous meetings,

meetings for his PTSD, and takes a class to help with his suicidal tendencies. His

conditions require him to be on a “diabetes” diet, which his wife prepares for him. She also

manages his medications.

During the hearing, Hall stated that he understood the range of punishment the

court could impose and acknowledged his prior driving under the influence convictions from

1974, 1982, and 1983, and his prior conviction for aggravated sexual assault of a child.

Hall then asked the court to “think outside the box” by considering his medical and

psychological needs when considering his sentence. Hall requested probation, noting that

he would follow any orders of the trial court, would sell his truck to pay court costs, would

surrender his driver’s license, would engage in a “large amount” of community service, and

would register as a sex offender.

1 Hall testified that he served in the United States Marines. 2 The trial court accepted his plea and sentenced him to five years in the Texas

Department of Corrections—Institutional Division. On appeal, Hall argues that this

sentence constitutes cruel and unusual punishment in violation of the eight and fourteenth

amendments to the United States Constitution and article one, section 13 of the Texas

Constitution. See U.S. CONST . amends. VIII, XIII; TEX . CONST . art. I, § 13.

II. DISCUSSION

The State argues that Hall failed to properly preserve his complaint for our review.

We agree.

“To preserve an error for appellate review, a party must present a timely objection

to the trial court, state the specific grounds for the objection, and obtain a ruling.” Trevino

v. State, 174 S.W.3d 925, 927 (Tex. App.–Corpus Christi 2005, pet. ref’d). Constitutional

claims may be waived when a party fails to object. Id. (citing Smith v. State, 721 S.W.2d

844, 855 (Tex. Crim. App. 1986)); see Solis v. State, 945 S.W.2d 300, 301 (Tex.

App.–Houston [1st Dist.] 1997, pet. ref’d) (holding waiver where party failed to object to

disproportionality of sentence); Quintana v. State, 777 S.W.2d 474, 479 (Tex. App.–Corpus

Christi 1989, pet. ref’d) (holding defendant waived cruel and unusual punishment argument

by failing to object). However, “a party is not required to make a contemporaneous

objection to the imposition of an illegal sentence. Thus, an appellate court that otherwise

has jurisdiction over a criminal conviction may always notice and correct an illegal

sentence.” Trevino, 174 S.W.3d at 928 n.4 (“A sentence outside the maximum or

minimum range of punishment is unauthorized by law and therefore illegal.”) (internal

citations omitted).

3 In the present case, Hall did not object to the trial court’s sentence during the

hearing. In fact, Hall made no objection to the sentence “in any post-trial motion, on any

grounds, nor did he ever lodge an objection, under constitutional or other grounds, to the

alleged disparity, cruelty, unusualness or excessiveness of the sentences.” Id. at 927.

Additionally, the sentence imposed is not illegal and is within the punishment range

provided by statute. See TEX . PENAL CODE ANN . § 12.34 (Vernon 2003) (providing a

punishment range for third degree felonies of two to ten years imprisonment and a fine of

not more than $10,000); id. § 49.09(b)(2) (making a third conviction for driving while

intoxicated a third-degree felony). Because Hall failed to object to the trial court’s

sentence, and “[b]ecause the sentence imposed is within the punishment range and is not

illegal, we conclude that the rights [Hall] asserts for the first time on appeal are not so

fundamental as to have relieved him of the necessity of a timely, specific trial objection.”

Trevino, 174 S.W.3d at 927-28 (citing Blue v. State, 41 S.W.3d 129, 131 (Tex. Crim. App.

2000) (en banc)). Hall’s issue is overruled.

III. CONCLUSION

Having overruled Hall’s only issue, we affirm the judgment of the trial court.

__________________________ GINA M. BENAVIDES, Justice

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

Memorandum Opinion delivered and filed this the 14th day of May, 2009.