Terry R. Pimpleton v. State ( 2003 )

  In The

Court of Appeals  

For The  

First District of Texas  

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NO. 01-02-01328-CR

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TERRY PIMPLETON, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the 184th District Court

Harris County, Texas

Trial Court Cause No. 642933

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MEMORANDUM OPINION

          Appellant, Terry Pimpleton, challenges sentencing imposed pursuant to the State’s motion to adjudicate guilt for the offense of possession of a controlled substance, cocaine, with intent to deliver, a second-degree felony here. The trial court rejected appellant’s plea of not true to the State’s allegations, adjudicated appellant guilty, and assessed punishment at six years’ confinement in prison. In his sole issue, appellant contends that the sentence imposed is cruel and unusual punishment under the Eighth Amendment to the United States Constitution. U.S. Const. amend. VIII. Because appellant did not object to his sentence in the trial court, he waived his appellate challenge. We affirm.

Background

          Appellant initially pleaded guilty without an agreed recommendation from the State and was placed on 10 years’ deferred adjudication on November 19, 1992 after a pre-sentence investigation report was prepared. Supervision of appellant’s conditions of deferred adjudication was transferred to Winn Parish, Winnfield, Louisiana, where appellant lived. One condition of appellant’s deferred adjudication forbade him to travel outside Louisiana, where he lived, without permission from the trial court.

          On October 16, 2002, the State filed a motion to adjudicate appellant’s guilt on the grounds that appellant traveled outside Louisiana without permission in June 2002 and on September 5, 2003. Appellant pleaded not true, but the trial court found the allegations true, adjudicated appellant’s guilt, and sentenced him to six years’ confinement. Appellant did not object to the six-year sentence.

Analysis

          In his sole issue, appellant contends that his six-year sentence violated his right to be free from cruel and unusual punishment under the Eighth Amendment to the United States Constitution. U.S. Const. amend. VIII. To preserve a complaint of cruel and unusual punishment for appellate review, appellant had to present to the trial court a timely request, objection, or motion, stating the specific grounds for the ruling he desired. See Martinez v. State, 98 S.W.3d 189, 193 (Tex. Crim. App. 2003); In re C.E.M., 64 S.W.3d 425, 427 (Tex. App.––Houston [1st Dist.] 2000, no pet.); Solis v. State, 945 S.W.2d 300, 301 (Tex. App.—Houston [1st Dist.] 1997, pet. ref’d); Tex. R. App. P. 33.1(a). A specific objection must be made in the trial court to preserve an Eighth Amendment claim of cruel and unusual punishment. Nicholas v. State, 56 S.W.3d 760, 768 (Tex. App.–– Houston [14th Dist.] 2001, pet. ref’d).

          A specific objection at the trial court level brings the trial court’s attention to a possible error it may correct. See Solis, 945 S.W.2d at 301 (“The purpose for the rule is to allow opposing counsel to remove the objection or the trial court to cure any harm.”). By not objecting at the trial-court level, the defendant in Solis waived appellate review of his claims that a 20-year sentence for aggravated assault and a 40-year sentence for aggravated robbery were grossly disproportionate to the offenses and a violation of appellant’s federal and state constitutional guarantees against cruel and unusual punishment. Id.

          Appellant failed to preserve his point of error. The record contains neither an objection by appellant when he was sentenced, nor a motion for new trial after he was sentenced. The only pronouncement by appellant before the trial court was that he would “file notice of appeal,” in response to the trial court’s inquiry, at the close of the sentencing hearing, whether appellant intended to give notice of appeal.

          Having concluded that appellant was required to object timely and specifically by stating the grounds for the ruling he desired, we hold that appellant waived his point of error challenging his six-year sentence on Eighth Amendment grounds.

          We overrule appellant’s sole issue on appeal.

Conclusion

We affirm the judgment of the trial court.

     Elsa Alcala

     Justice

Panel consists of Chief Justice Radack and Justices Keyes and Alcala.

Do not publish. Tex. R. App. P. 47.2(b).