Norman Steven Pollard v. State ( 2006 )

Affirmed and Memorandum Opinion filed November 2, 2006

Affirmed and Memorandum Opinion filed November 2, 2006.

In The

Fourteenth Court of Appeals

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NO. 14-05-01126-CR

NO. 14-05-01127-CR

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NORMAN STEVEN POLLARD, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 179th District Court

Harris County, Texas

Trial Court Cause No. 892,066 & 892,067

M E M O R A N D U M   O P I N I O N

Appellant, Norman Steven Pollard, was charged with two counts of indecency with a child. He pleaded guilty pursuant to an agreement.  In accordance with the plea agreement, the trial court deferred a finding of guilt and placed appellant on probation for eight years and assessed a $500 fine.  After appellant violated terms and conditions of his community supervision, the State filed a motion to adjudicate guilt.  The trial court adjudicated appellant=s guilt and assessed punishment at confinement for ten years and a $500 fine. 

Because all dispositive issues are clearly settled in law, we issue this memorandum opinion and affirm.  See Tex. R. App. P. 47.4.

Discussion

In two issues, appellant contends (1) the punishment violates the Eighth Amendment of the United States Constitution because it was cruel and unusual under the circumstances of the Texas scheme for deferred adjudication, and (2) the punishment violates the Eighth Amendment of the United States Constitution because the trial court allegedly misled appellant into believing he had the right to appeal. However, appellant failed to preserve these complaints for appellate review.  

To preserve a complaint for appellate review, a party must have presented the trial court with a timely request, objection or motion, stating the specific grounds for the ruling desired if those grounds were not apparent from the context.  Tex. R. App. P. 33.1(a). Even constitutional errors may be waived by failure to object at trial.  Broxton v. State, 909 S.W.2d 912, 918 (Tex. Crim. App. 1995).  Failure to make a specific objection at trial constitutes waiver of an Eighth Amendment claim of cruel and unusual punishment.  Curry v. State, 910 S.W.2d 490, 497 (Tex. Crim. App. 1995) (holding error not preserved where appellant failed to object at trial concerning cruel and unusual punishment); Nicholas v. State, 56 S.W.3d 760, 768 (Tex. App.CHouston [14th Dist.] 2001, pet. ref=d) (holding error not preserved where appellant failed to object to the sentences as violating his constitutional rights at the time they were announced);  see also Hardeman v. State, 1 S.W.3d 689, 690 (Tex. Crim. App. 1999) (holding appellant failed to preserve error where given an opportunity to object after guilt was adjudicated and before judge pronounced the sentence). In this case, appellant failed to object on Eighth Amendment grounds either before or after the trial court pronounced his sentence.  Therefore, appellant waived his Eighth Amendment complaints.^[1] We overrule appellant=s first and second issues. 

Accordingly, the judgment of the trial court is affirmed.

/s/        Charles W. Seymore

Justice

Judgment rendered and Memorandum Opinion filed November 2, 2006.

Panel consists of Chief Justice Hedges and Justices Seymore, and Mirabal.^[2]

Do Not Publish C Tex. R. App. P. 47.2(b).

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^[1]  We find no support in this record for appellant=s contention that the trial court misled him into believing he could appeal.  According to appellant, this contention is made in anticipation that the State will argue he has no right to this appeal.  The State has made no such argument.  Article 42.12, section 5(b) of the Texas Code of Criminal Procedure provides that Ano appeal may be taken@ from the hearing at which the trial court determines whether it will proceed with an adjudication of guilt on the original charge.  Tex. Code Crim. Proc. Ann. Art. 42.12, ' 5(b) (Vernon Supp. 2006).  However, Aafter an adjudication of guilt, all proceedings, including assessment of punishment, pronouncement of sentence, granting of community supervision, and defendant=s appeal continue as if the adjudication of guilt had not been deferred.@  Id. (emphasis added);  see also Hargesheimer v. State, 182 S.W.3d 906, 913 (Tex. Crim. App. 2006) (explaining when a defendant who entered into a plea bargain for deferred adjudication community supervision appeals from the proceeding on the motion to adjudicate guilt, Article 42.12, section 5(b) prohibits the appeal of the trial court=s decision to adjudicate guilt).  Therefore, appellant has a right to, and indeed did, appeal the assessment of punishment. Nevertheless, he has waived any complaint that the punishment violated the Eighth Amendment.

^[2]  Senior Justice Margaret Garner Mirabal sitting by assignment.