Cal Earl Hutcherson v. State ( 2013 )

In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
No. 06-13-00007-CR
CAL EARL HUTCHERSON, Appellant
V.
STATE OF TEXAS, Appellee
On Appeal from the 336th District Court
Fannin County, Texas
Trial Court No. 21109
Before Morriss, C.J., Carter and Moseley, JJ.
Memorandum Opinion by Justice Carter
MEMORANDUM OPINION
Cal Earl Hutcherson appeals a judgment that adjudicated him guilty of the offense of
aggravated assault causing serious bodily injury, sentenced him to twenty years’ imprisonment,
and ordered him to pay a $3,000.00 fine. In his sole ground on appeal, Hutcherson argues that
the sentence is “disproportionate given the allegation contained in the Motion to Adjudicate.”
We affirm the judgment because Hutcherson has failed to preserve this issue for appeal.
To preserve a complaint for appellate review, an appellant must have presented to the
trial court a timely request, objection, or motion stating the specific grounds for the ruling
desired. TEX. R. APP. P. 33.1(a)(1)(A). “Even constitutional errors may be waived by failure to
object at trial.” Stitt v. State, 102 S.W.3d 845, 848 (Tex. App.—Texarkana 2003, pet. ref’d)
(citing Briggs v. State, 789 S.W.2d 918, 924 (Tex. Crim. App. 1990)); see Mendez v. State, 138
S.W.3d 334, 342 (Tex. Crim. App. 2004); Curry v. State, 910 S.W.2d 490, 496 (Tex. Crim. App.
1995). Thus, to preserve the issue of whether a defendant’s sentence is disproportionate under
the Eighth Amendment to the United States Constitution or under Article I, Section 13 of the
Texas Constitution, the defendant must make a timely objection before the trial court. TEX. R.
APP. P. 33.1(a); Hookie v. State, 136 S.W.3d 671, 679–80 (Tex. App.—Texarkana 2004, no pet.).
To meet this requirement, we have previously held that a defendant is required to raise a
disproportionality objection to a sentence at the time the sentence is imposed or by a timely filed
motion for new trial. Mullins v. State, 208 S.W.3d 469, 470 n.1 (Tex. App.—Texarkana 2006,
no pet.).
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Here, Hutcherson admits in his brief that “the error was not properly preserved.” No
objection was made at the time Hutcherson’s sentence was pronounced, and the clerk’s record
contains no motion for new trial. Therefore, Hutcherson’s sole complaint on appeal has not been
preserved for our review.
We affirm the trial court’s judgment.
Jack Carter
Justice
Date Submitted: May 29, 2013
Date Decided: May 30, 2013
Do Not Publish
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