Alford Winkfield v. State ( 2011 )

IN THE
TENTH COURT OF APPEALS
No. 10-10-00394-CR
ALFORD WINKFIELD,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 18th District Court
Johnson County, Texas
Trial Court No. F43573
MEMORANDUM OPINION
Alford Jay Winkfield appeals from his conviction for aggravated sexual assault
of a child, which was enhanced by two prior convictions. TEX. PEN. CODE ANN. § 22.021
(West 2011). Winkfield pled guilty to the offense and pled true to the two enhancement
paragraphs, but went to the jury to determine punishment. The trial court assessed
Winkfield’s punishment in accordance with the jury’s verdict at life imprisonment. TEX.
PEN. CODE ANN. § 12.42 (West 2011). Winkfield complains that his sentence violates the
Eighth Amendment’s prohibition against cruel and unusual punishment and that his
due process rights were violated because the jury’s note indicated that the sentence was
predetermined by the jury. Because Winkfield did not preserve these complaints by
objecting to the trial court either during trial or in a post-judgment motion, we affirm
the judgment of the trial court.
Cruel and Unusual Punishment
In his first issue, Winkfield argues the life sentence for the enhanced aggravated
sexual assault of a child offense constitutes cruel and unusual punishment although he
concedes that the sentence is within the statutory range for the offense. He argues on
appeal the sentence is a violation of the Eighth Amendment of the United States
Constitution. However, there is no objection on this ground in the trial court record.
An appellant must make an objection in the trial court for us to review this issue
for error on appeal. TEX. R. APP. P. 33.1(a). Claims of cruel and unusual punishment
can be waived if not brought before the trial court. See Rhoades v. State, 934 S.W.2d 113,
120 (Tex. Crim. App. 1996) (failure to raise a challenge to sentence under the Eighth
Amendment to the U.S. Constitution in the trial court leads to waiver on appeal);
Noland v. State, 264 S.W.3d 144, 151-52 (Tex. App.—Houston [1st Dist.] 2007, pet. ref’d)
(waiver of cruel and unusual punishment claim occurred because no objection was
made at trial).
Winkfield did not raise any of his objections to the punishment at the trial court
either at the time of sentencing or in a motion for new trial. As a result, he has waived
them. See TEX. R. APP. P. 33.1(a); Rhoades, 934 S.W.2d at 120. We overrule Winkfield’s
first issue.
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Predetermined Sentence
Winkfield complains in his second issue that his due process rights were violated
because the jury had predetermined his sentence. During its deliberations, the jury sent
out a note asking what the difference is between ninety-nine years and life. Winkfield
affirmatively did not object to the trial court’s response to the question.
The requirement of an objection to the trial court applies even to due process
violations. See Hull v. State, 67 S.W.3d 215, 217-18 (Tex. Crim. App. 2002); TEX. R. APP. P.
33.1(a). Winkfield did not object during the proceeding or at the time his sentence was
imposed, nor did he raise his due process concerns in a motion for new trial. As a
result, he has waived this complaint as well. See TEX. R. APP. P. 33.1(a). We overrule
Winkfield’s second issue.
Conclusion
Having found that Winkfield’s complaints were not preserved in the trial court
and were therefore waived, we affirm the judgment of the trial court.
TOM GRAY
Chief Justice
Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins
Affirmed
Opinion delivered and filed September 28, 2011
Do not publish
[CRPM]
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