Terry Mitchell v. State

IN THE
TENTH COURT OF APPEALS
No. 10-18-00178-CR
TERRY MITCHELL,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 40th District Court
Ellis County, Texas
Trial Court No. 42879CR
MEMORANDUM OPINION
Terry Wayne Mitchell was convicted of Driving While Intoxicated, a third or more
offense, enhanced, and sentenced to 55 years in prison. See TEX. PENAL CODE ANN. §§
49.04; 49.09 (West 2011). The trial court’s judgment is affirmed.
In two issues, Mitchell contends that his 55-year sentence was grossly
disproportionate to the crime and inappropriate to the offender under the Eighth
Amendment to the United States Constitution and Article I, Section 13 of the Texas
Constitution. See U.S. CONST. amend. VIII; see also TEX. CONST. art. I, § 13.
A disproportionate-sentence claim must be preserved for appellate review. See
TEX. R. APP. P. 33.1(a)(1); Rhoades v. State, 934 S.W.2d 113, 120 (Tex. Crim. App. 1996);
Mercado v. State, 718 S.W.2d 291, 296 (Tex. Crim. App. 1986) (en banc); see also Noland v.
State, 264 S.W.3d 144, 151 (Tex. App.—Houston [1st Dist.] 2007, pet. ref’d). At trial,
Mitchell did not object to the imposed sentence. Further, Mitchell did not file a motion
for new trial or otherwise present a post-trial objection to the imposed sentence. Thus,
Mitchell’s complaints in these two issues are not preserved and are overruled.
Having overruled Mitchell’s issues on appeal, we affirm the trial court’s judgment.
TOM GRAY
Chief Justice
Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins1
Affirmed
Opinion delivered and filed February 20, 2019
Do not publish
[CRPM]
1
The Honorable Al Scoggins, Senior Justice of the Tenth Court of Appeals, sitting by assignment of the
Chief Justice of the Texas Supreme Court. See TEX. GOV’T CODE ANN. §§ 74.003, 75.002, 75.003 (West 2013).
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