Victor Weston v. State ( 2014 )

In The
Court of Appeals
Ninth District of Texas at Beaumont
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NO. 09-14-00069-CR
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VICTOR WESTON, Appellant
V.
THE STATE OF TEXAS, Appellee
_______________________________________________________ ______________
On Appeal from the 252nd District Court
Jefferson County, Texas
Trial Cause No. 11-10859
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MEMORANDUM OPINION
Victor Weston appeals from the trial court’s decision to revoke its order
placing Weston on community supervision. In two issues, Weston contends that his
sentence is constitutionally disproportionate and unreasonable, and that the trial
court erred by failing to consider mitigating evidence in deciding his sentence. We
affirm the trial court’s judgment.
1
Background
In carrying out a plea bargain agreement, Weston pled guilty to burglarizing
a habitation with the intent to commit an assault, a first degree felony. See Tex.
Penal Code Ann. § 30.02(a)(3), (d) (West 2011). Under the terms of Weston’s plea
bargain agreement, the trial court deferred its decision to adjudicate Weston’s guilt,
placed him on community supervision for eight years, and assessed a fine of one
thousand dollars.
Approximately seven months later, the State filed a motion to revoke the
community-supervision order, suggesting that the trial court adjudicate Weston’s
guilt and find him guilty of burglary. During the revocation hearing, Weston pled
“true” to violating a condition of the trial court’s community supervision order.
The trial court found that Weston violated a term of the trial court’s deferred
adjudication order and found Weston guilty of burglarizing a habitation with the
intent to commit an assault. At the conclusion of Weston’s revocation hearing, the
trial court assessed a ten year sentence. Weston did not object to the sentence the
trial court pronounced, nor did he file a motion for new trial.
Analysis
In issues one and two, Weston argues that his sentence is constitutionally
disproportionate and unreasonable under the Eighth Amendment to the United
States Constitution, and under article I, section 13 of the Texas Constitution.
2
See U.S. CONST. amend. VIII; Tex. Const. art. I, § 13. To preserve a complaint that
a sentence is disproportionate for the crime or circumstances particular to a case,
the defendant must make a timely, specific objection in the trial court asserting
such a claim, or he must raise the issue in a motion for new trial. See Tex. R. App.
P. 33.1(a); Rhoades v. State, 934 S.W.2d 113, 120 (Tex. Crim. App. 1996)
(holding that defendant waived any claim that article I, section 13 of the Texas
Constitution was violated because the defendant failed to raise his objection in the
trial court); Kim v. State, 283 S.W.3d 473, 475 (Tex. App.—Fort Worth 2009, pet.
ref’d) (holding that the defendant failed to preserve his argument that his sentence
was disproportionate by failing to raise an objection asserting that claim in the trial
court).
The record reflects that when his sentence was pronounced, Weston did not
preserve his right to appellate review by objecting that he was being given a
disproportionate sentence in violation of the United States Constitution or the
Texas Constitution. We conclude that Weston failed to preserve his claim that he
received a disproportionate sentence for review on appeal. See Tex. R. App. P.
33.1(a).
However, even had Weston preserved the complaints he attempts to raise in
his appeal about the length of his sentence, we would reject Weston’s arguments
that he received an unconstitutional sentence. Weston’s sentence of ten years is
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within the statutory range the Legislature authorized for burglarizing a habitation
with the intent to commit an assault. See Tex. Penal Code Ann. § 12.32 (West
2011) (providing that a first degree felony shall be punished by confinement for
life or for any term of not more than ninety-nine years or less than five years), §
30.02(a)(3), (d) (providing that the offense of burglarizing a habitation with the
intent to commit a felony other than felony theft is a first degree felony). When the
sentence that the defendant received is within the range of punishment authorized
by the Legislature, a court will generally not disturb the sentence by declaring that
the trial court’s sentence to be excessive. See Jackson v. State, 680 S.W.2d 809,
814 (Tex. Crim. App. 1984). Nor is a sentence that is within the authorized range
generally considered to be a constitutionally cruel or unusual punishment. See Kirk
v. State, 949 S.W.2d 769, 772 (Tex. App.—Dallas 1997, pet. ref’d); see
also Jackson v. State, 989 S.W.2d 842, 846 (Tex. App.—Texarkana 1999, no pet.).
While Weston argues the trial court failed to consider factors that mitigated
against his sentence, which are outlined in article 37.07 of the Texas Code of
Criminal Procedure, the record does support his argument. See Tex. Code Crim.
Proc. Ann. art. 37.07, § 3 (West Supp. 2014).1 The trial court did not exclude any
testimony introduced by either party during the hearing. Additionally, Weston
1
We cite to the current version of the statute because the subsequent
amendment does not affect the outcome of this appeal.
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failed to introduce evidence at the hearing reflecting that lesser sentences are
imposed by trial courts for similar offenses on criminals who have committed
similar crimes in Texas or in other jurisdictions, so we are unable to compare the
sentence Weston received with any other cases to evaluate the arguments he makes
in his appeal.2 See Jackson, 989 S.W.2d at 846.
We hold that Weston failed to preserve the complaints that he makes about
his sentence for our review on appeal. Issues one and two are overruled.
AFFIRMED.
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HOLLIS HORTON
Justice
Submitted on October 15, 2014
Opinion Delivered December 10, 2014
Do Not Publish
Before McKeithen, C.J., Horton and Johnson, JJ.
2
Weston suggests that if more information is needed, this Court should abate
the appeal for a hearing to allow him to gather information regarding sentences
imposed for similar offenses. Weston cites no authority to support his request that
we should allow him additional hearings for this purpose, and we decline his
request asking to remand the case for further hearings. See Tex. R. App. P. 38.1(i).
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