William Holland v. State

• Court: Court of Appeals of Texas
• Decided: June 18, 2009
• Docket: 13-08-00367-CR
• Status: Published

Opinion

NUMBER 13-08-367-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

WILLIAM HOLLAND, Appellant,

v.

THE STATE OF TEXAS, Appellee.

On appeal from the 94th District Court of Nueces County, Texas.

MEMORANDUM OPINION

Before Chief Justice Valdez and Justices Yañez and Benavides Memorandum Opinion by Justice Yañez

Without the benefit of a plea bargain, appellant, William Holland, pleaded nolo

contendere to one count of indecency with a child by sexual contact.1 The trial court found

him guilty and sentenced him to ten year’s imprisonment. The sole issue raised on appeal

1 See T EX . P EN AL C OD E A N N . § 21.11(a)(1) (Vernon 2003). Indecency with a child by sexual contact is a second-degree felony. See id. at § 21.11(d). is whether appellant’s punishment is disproportionate to the seriousness of the offense, in

violation of the Eighth and Fourteenth Amendments to the United States Constitution.2 We

affirm.

I. BACKGROUND

At the time of the incident, the victim, appellant’s granddaughter, was ten years old.

Appellant made sexual contact with the victim at his home, while he was watching her after

school. He pleaded nolo contendere and asked for community supervision. The trial court

imposed a sentence of ten years, which was within the statutory range of punishment.3

II. DISPROPORTIONATE PUNISHMENT

Appellant contends that his ten-year sentence is unconstitutionally disproportionate

to the severity of his crime, thus violating the Eighth Amendment protection against cruel

and unusual punishment.4 The Eighth Amendment does not require strict proportionality

between the crime and the sentence; rather it forbids only extreme sentences that are

grossly disproportionate to the crime.5 It is applicable to the states by and through the

Fourteenth Amendment.6 The precise contours of the “grossly disproportionate” standard

are unclear, but it applies only in “exceedingly rare” and “extreme” cases.7 Texas courts

2 U.S. C ON ST . am end. VIII, XIV.

3 See T EX . P EN AL C OD E A N N . § 12.33 (Vernon 2003) (providing that punishm ent range for a second- degree felony is im prisonm ent for a term of two to twenty years, plus an optional fine of $10,000).

4 U.S. C ON ST . am end. VIII.

5 See Ewing v. California, 538 U.S. 11, 23 (2003).

6 See Robinson v. California, 370 U.S. 660, 667 (1962).

7 See Lockyer v. Andrade, 538 U.S. 63, 73 (2003).

2 have traditionally held that a sentence within the statutory range prescribed by the

legislature is not excessive.8 However, Texas courts recognize that a prohibition against

grossly disproportionate sentences survives under the federal constitution apart from any

consideration of whether the punishment assessed is within the statute’s punishment

range.9

The State argues that appellant failed to raise an objection at trial regarding cruel

and unusual punishment, and thus failed to preserve the issue on appeal. We agree.

III. PRESERVATION OF ERROR

Appellant made no objection to his sentence to the trial court, during sentencing, or

in any post-trial motion. He never claimed the sentence was excessive or cruel. In order

to preserve an issue for appellate review, a party must present a timely request, objection,

or motion to the trial court stating the specific grounds for the objection and must obtain a

ruling.10 It is well-settled that even constitutional rights may be waived by a failure to

object.11 Moreover, this Court has held that failing to complain that a sentence is cruel and

unusual, either by objection during the punishment phase of trial or by a motion for new

8 See Jordan v. State, 495 S.W .2d 949, 952 (Tex. Crim . App. 1973); Trevino v. State, 174 S.W .3d 925, 928 (Tex. App.–Corpus Christi 2005, pet. ref’d).

9 W inchester v. State, 246 S.W .3d 386, 388 (Tex. App.–Am arillo 2008, pet. ref’d); Mullins v. State, 208 S.W .3d 469, 470 (Tex. App.–Texarkana 2006, no pet.).

10 T EX . R. A PP . P. 33.1; see Trevino, 174 S.W .3d at 927 (citing Blue v. State, 41 S.W .3d 129, 131 (Tex. Crim . App. 2000)).

11 See Trevino, 174 S.W .3d at 927 (citing Smith v. State, 721 S.W .2d 844, 855 (Tex. Crim . App. 1986)); see also W right v. State, 28 S.W .3d 526, 536 (Tex. Crim . App. 2000); Luna v. State, 70 S.W .3d 354, 359 (Tex. App.–Corpus Christi 2002, pet. ref’d).

3 trial, waives the error.12

IV. CONCLUSION

Here, appellant neither objected to his sentence nor raised the issue in his motion

for new trial. We hold appellant failed to preserve the issue for review. We overrule

appellant’s sole issue and affirm the trial court judgment.

LINDA REYNA YAÑEZ, Justice

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

Memorandum Opinion delivered and filed this the 18th day of June, 2009.

12 Quintana v. State, 777 S.W .2d 474, 479 (Tex. App.–Corpus Christi 1989, pet. ref’d).