David Allen Russell v. State ( 2011 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-10-00161-CR
NO. 02-10-00162-CR
DAVID ALLEN RUSSELL APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM THE 396TH DISTRICT COURT OF TARRANT COUNTY
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OPINION
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The trial court adjudicated Appellant David Allen Russell guilty of two
counts of indecency with a child by contact in cause 0747847D and two counts of
indecency with a child by contact in cause 0750351D on his pleas of true to
allegations that he had violated the terms and conditions of his deferred
adjudication community supervision. The trial court sentenced Russell to fifteen
years’ confinement in each cause. In a single issue, Russell argues that his
fifteen-year sentences violate the Eighth Amendment’s prohibition against
grossly disproportionate sentences.1 We will affirm.
This court stated the following in Kim v. State:
It is axiomatic that errors that are asserted on the part of the
trial court must generally be brought to the trial court’s attention in
order to afford the trial court an opportunity to correct the error, if
any. To preserve for appellate review a complaint that a sentence is
grossly disproportionate, constituting cruel and unusual punishment,
a defendant must present to the trial court a timely request,
objection, or motion stating the specific grounds for the ruling
desired.
Kim’s complaint about the alleged disproportionality of his
sentence was not raised at the time it was imposed or in a motion for
new trial. Therefore, he preserved nothing for our review.
283 S.W.3d 473, 475 (Tex. App.—Fort Worth 2009, pet. ref’d) (citations omitted).
Similarly, here, Russell did not assert any objection when the trial court
sentenced him to fifteen years’ confinement in each cause, nor did he file a
motion for new trial in either cause raising the disproportionality argument that he
asserts now in this appeal. Consequently, Russell failed to preserve this issue
for appellate review.2 See id.; Noland v. State, 264 S.W.3d 144, 151–52 (Tex.
App.—Houston [1st Dist.] 2007, pet. ref’d) (holding that appellant failed to
preserve argument that sentence was grossly disproportionate to offense); Wynn
1
Indecency with a child by contact, a second-degree felony, is punishable
by a term of imprisonment of not more than twenty years or less than two years.
Tex. Penal Code Ann. §§ 12.33(a), 21.11(d) (Vernon Supp. 2010).
2
We decline Russell’s unsupported invitation ―to treat the Eighth
Amendment issues similar to those regarding ineffective assistance of counsel.‖
2
v. State, 219 S.W.3d 54, 61 (Tex. App.—Houston [1st Dist.] 2006, no pet.)
(same); Smith v. State, 10 S.W.3d 48, 49 (Tex. App.—Texarkana 1999, no pet.)
(same); Kahn v. State, No. 05-08-01223-CR, 2010 WL 2293411, at *7–8 (Tex.
App.—Dallas June 9, 2010, no pet.) (not designated for publication) (same); see
also Mercado v. State, 718 S.W.2d 291, 296 (Tex. Crim. App. 1986) (―As a
general rule, an appellant may not assert error pertaining to his sentence or
punishment where he failed to object or otherwise raise such error in the trial
court.‖). We overrule Russell’s sole issue and affirm the trial court’s judgments.
BILL MEIER
JUSTICE
PANEL: DAUPHINOT, MEIER, and GABRIEL, JJ.
DAUPHINOT, J. filed a concurring opinion.
GABRIEL, J. concurs without opinion.
PUBLISH
DELIVERED: April 7, 2011
3
COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-10-00161-CR
NO. 02-10-00162-CR
DAVID ALLEN RUSSELL APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM THE 396TH DISTRICT COURT OF TARRANT COUNTY
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CONCURRING OPINION
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For the reasons expressed in my concurrence to the majority opinion in
Laboriel-Guity v. State1 and in my concurring and dissenting opinion to the
1
No. 02-10-00175-CR, 2011 WL 167257, at *3–4 (Tex. App.—Fort Worth
Jan. 13, 2011, pet. filed) (Dauphinot, J., concurring).
majority opinion in Kim v. State,2 I cannot join the majority opinion’s rationale
here but must respectfully concur only in the result.
LEE ANN DAUPHINOT
JUSTICE
PUBLISH
DELIVERED: April 7, 2011
2
283 S.W.3d 473, 476–79 (Tex. App.—Fort Worth 2009, pet. ref’d)
(Dauphinot, J., concurring and dissenting).
2