Carlos Bush v. State ( 2008 )

In The Court of Appeals Sixth Appellate District of Texas at Texarkana

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No. 06-08-00072-CR ______________________________



CARLOS BUSH, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the 124th Judicial District Court Gregg County, Texas Trial Court No. 35053-B

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Before Morriss, C.J., Carter and Moseley, JJ. Memorandum Opinion by Justice Moseley

MEMORANDUM OPINION

Carlos Bush has appealed from his open plea of guilty to the offense of burglary of a habitation. See Tex. Penal Code Ann. § 30.02(c)(2) (Vernon 2003). He was sentenced by the trial court to five years' imprisonment. ⁽¹⁾

On appeal, Bush contends that his sentence is disproportionate to the crime, citing Solem v. Helm, 463 U.S. 277 (1983), and Davis v. State, 905 S.W.2d 655 (Tex. App.--Texarkana 1995, pet. ref'd). To preserve such complaint for appellate review, Bush must have presented to the trial court a timely request, objection, or motion that stated the specific grounds for the desired ruling, or the complaint must be apparent from the context. See Tex. R. App. P. 33.1(a)(1); Harrison v. State, 187 S.W.3d 429, 433 (Tex. Crim. App. 2005); Williams v. State, 191 S.W.3d 242, 262 (Tex. App.--Austin 2006, no pet.) (claims of cruel and unusual punishment must be presented in timely manner); Nicholas v. State, 56 S.W.3d 760, 768 (Tex. App.--Houston [14th Dist.] 2001, pet. ref'd) (failure to complain to trial court that sentences were cruel and unusual waived claim of error for appellate review). We have reviewed the record of the trial proceeding. No relevant request, objection, or motion was made. Although this Court has held that a motion for new trial is an appropriate way to preserve this type of claim for review (see Williamson v. State, 175 S.W.3d 522, 523-24 (Tex. App.--Texarkana 2005, no pet.); Delacruz v. State, 167 S.W.3d 904 (Tex. App.--Texarkana 2005, no pet.)), Bush did not file a motion for new trial. He has not preserved such an issue for appeal.

Therefore, we affirm the trial court's judgment.

Bailey C. Moseley

Justice

Date Submitted: June 18, 2008

Date Decided: June 19, 2008

Do Not Publish

1. Bush's sentence was imposed April 12, 2007; his notice of appeal was untimely filed, and this Court dismissed the appeal for want of jurisdiction July 31, 2007. Thereafter, the Texas Court of Criminal Appeals granted Bush an out-of-time appeal. Its mandate issued February 19, 2008, and Bush filed his notice of appeal February 29, 2008, within the thirty-day time limit after issuance of the Texas Court of Criminal Appeals mandate.

                                                         In The

                                                Court of Appeals

                        Sixth Appellate District of Texas at Texarkana

                                                ______________________________

                                                             No. 06-11-00057-CV

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                 IN THE INTEREST OF A.P., G.P., AND L.P., CHILDREN

                                       On Appeal from the 336th Judicial District Court

                                                             Fannin County, Texas

                                                       Trial Court No. FA-10-39888

                                          Before Morriss, C.J., Carter and Moseley, JJ.

                                            Memorandum Opinion by Justice Moseley

                                                      MEMORANDUM OPINION

            Bonnie Ruth Allen-Pieroni, the sole appellant in this case, has filed a motion seeking to dismiss her appeal, stating that the trial court has granted a new trial in this matter. Pursuant to Rule 42.1 of the Texas Rules of Appellate Procedure, her motion is granted.  Tex. R. App. P. 42.1.

            We dismiss the appeal.

                                                                        Bailey C. Moseley

                                                                        Justice

Date Submitted:          November 1, 2011

Date Decided:             November 2, 2011