Opinion
No. 05-16-00669-CR
05-22-2017
HURSHAL SIMS, JR., Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 86th Judicial District Court Kaufman County, Texas
Trial Court Cause No. 15-50624-86-F
MEMORANDUM OPINION
Before Justices Bridges, Lang-Miers, and Evans
Opinion by Justice Lang-Miers
A jury convicted Hurshal Sims, Jr. for the offense of theft of property valued less than $2,500 with two prior theft convictions. After finding two enhancement paragraphs true, the trial court assessed punishment at thirteen years' imprisonment. In two issues, appellant contends the sentence violates his constitutional rights and is grossly disproportionate to the crime and inappropriate to the offender. We affirm the trial court's judgment.
Appellant argues the sentence is proportionally unfair and in violation of the United States and Texas Constitutions. See U.S. CONST. amend. VIII, XIV; TEX. CONST. art. I, § 13. Appellant acknowledges the sentence is within the punishment range, but asserts the punishment is severe in light of his longstanding drug addiction. Appellant asserts he should have received a lighter sentence and help for his drug addiction. The State responds that appellant failed to preserve the issue for appellate review and alternatively, the sentence is not unconstitutionally disproportionate given appellant's extensive criminal background.
To preserve error for appellate review, the record must show appellant made a timely request, objection, or motion. See TEX. R. APP. P. 33.1(a)(1). Constitutional rights, including the right to be free from cruel and unusual punishment, may be waived. Rhoades v. State, 934 S.W.2d 113, 120 (Tex. Crim. App. 1996). Appellant did not object when he was sentenced, nor did his motion for new trial address this complaint. Accordingly, he has not preserved the issue for appellate review. See Castaneda v. State, 135 S.W.3d 719, 723 (Tex. App.—Dallas 2003, no pet.).
Moreover, punishment that is assessed within the statutory range for an offense is neither excessive nor unconstitutionally cruel or unusual. Kirk v. State, 949 S.W.2d 769, 772 (Tex. App.—Dallas 1997, pet. ref'd); see also Jackson v. State, 680 S.W.2d 809, 814 (Tex. Crim. App. 1984) (sentence will not be disturbed on appeal if it is within its statutory range of punishment). Theft of property valued less than $2,500 with two prior theft convictions is a state jail felony offense punishable by confinement in state jail for any term of not more than two years or less than 180 days and an optional fine not to exceed $10,000. See TEX. PENAL CODE ANN. §§ 12.35, 31.03(a), (e)(4)(D) (West 2011 & Supp. 2016). However, appellant was sentenced as a habitual offender because of two or more prior felony convictions. Thus, the punishment range increased to imprisonment for two to twenty years (he was sentenced under section 12.33, second degree felony punishment, of the Texas Penal Code) and an optional fine not to exceed $10,000. See TEX. PENAL CODE ANN. §§ 12.33(a), 12.425(c) (West Supp. 2016). Appellant's thirteen-year sentence is within the statutory punishment range for an habitual offender. We overrule appellant's issues.
We affirm the trial court's judgment.
/Elizabeth Lang-Miers/
ELIZABETH LANG-MIERS
JUSTICE Do Not Publish
TEX. R. APP. P. 47 160669F.U05
JUDGMENT
On Appeal from the 86th Judicial District Court, Kaufman County, Texas
Trial Court Cause No. 15-50624-86-F.
Opinion delivered by Justice Lang-Miers. Justices Bridges and Evans participating.
Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED. Judgment entered this 22nd day of May, 2017.