David Fitzgerald Underwood v. State ( 2014 )

Affirmed and Memorandum Opinion filed December 11, 2014.
In The
Fourteenth Court of Appeals
NO. 14-14-00453-CR
DAVID FITZGERALD UNDERWOOD, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 185th District Court
Harris County, Texas
Trial Court Cause No. 1408488
MEMORANDUM OPINION
A jury convicted appellant David Fitzgerald Underwood of possession of a
controlled substance. Appellant pled “true” to two enhancement allegations and the
trial court sentenced him to prison for forty years. In his sole issue on appeal,
appellant claims his sentence constituted cruel and unusual punishment. 1
1
Appellant concedes that his sentence was within the applicable statutory range.
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). See also Arriaga v. State, 335 S.W.3d 331, 334–35 (Tex.App.—Houston
[14th Dist.] 2010, pet. ref’d). Appellant admits that no objection was made but,
citing Nicholas v. State, 56 S.W.3d 760, 768 (Tex. App.—Houston [14th Dist.]
2001, pet. ref’d), argues we may address the merits of his complaint. In Nicholas,
this court stated, “[t]he constitutional right to be free from cruel and unusual
punishment may be waived.” In its proper context, this statement was made to
reiterate that the constitutional right against cruel and unusual punishment could be
waived. Id.
The claim presented on appeal was not raised when appellant was
sentenced 2 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.). We therefore overrule appellant’s issue and
affirm the trial court’s judgment.
PER CURIAM
2
Appellant does not claim, and we do not find, that his plea for leniency when the trial
court assessed his sentence preserved the error raised on appeal.
2
Panel consists of Chief Justice Frost and Justices Christopher and Busby.
Do Not Publish — Tex. R. App. P. 47.2(b).
3