Opinion
NO. 01-16-00503-CR
12-29-2016
EDDIE RAY WILHITE, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 178th District Court Harris County, Texas
Trial Court Case No. 1494364
MEMORANDUM OPINION
Eddie Ray Wilhite pleaded guilty to possession of a controlled substance, namely cocaine. See TEX. HEALTH & SAFETY CODE ANN. § 481.115 (West 2009). The trial court assessed his sentence at two years' confinement. On appeal, Wilhite contends that the sentence violates his Eighth Amendment right against cruel and unusual punishment and thus was error. We conclude that his contention was not preserved for review and therefore affirm.
Background
In May 2016, Wilhite pleaded guilty to possessing less than one gram of cocaine. The State alleged that Wilhite had previous convictions for attempted assault of a family member and possession of a controlled substance. The trial court informed Wilhite that, if the State proved the two enhancement paragraphs, then he would face a punishment range of two to ten years and he would be eligible for probation.
At the sentencing hearing, Wilhite admitted that he had been previously convicted of assault of a family member and for possession of a controlled substance in 2001 and 2006. Wilhite further admitted that he had been convicted of unauthorized use of a motor vehicle, sexual assault of a family member, violation of a protective order, and driving while intoxicated with a child passenger. The trial judge found both of the enhancement paragraphs true and sentenced Wilhite to two years' confinement. Wilhite raised no legal objections to his sentence. On appeal, Wilhite's sole complaint is that the trial court committed fundamental error by sentencing him to two years' imprisonment when probation was an available option.
Discussion
To preserve error for appellate review, the record must show that the defendant raised his complaint by a timely and specific objection. TEX. R. APP. P. 33.1(a)(1)(A); Steadman v. State, 31 S.W.3d 738, 741 (Tex. App.—Houston [1st Dist.] 2000, pet. ref'd). This requirement serves two purposes: (1) to inform the trial court of the objection and give it the opportunity to cure any error, and (2) to give opposing counsel the opportunity to take appropriate action in response. See TEX. R. APP. P. 33.1(a)(1); Wright v. State, 178 S.W.3d 905, 931 (Tex. App.—Houston [14th Dist.] 2005, pet. ref'd) (holding that appellant failed to preserve error when appellant's counsel quoted objectionable phrase but did not state basis for objection).
We treat Wilhite's complaint as an Eighth Amendment challenge to the proportionality of the sentence imposed by the trial court. The Eighth Amendment of the United States Constitution requires that a criminal sentence be proportionate to the crime for which a defendant has been convicted. Solem v. Helm, 463 U.S. 277, 290, 103 S. Ct. 3001, 3009 (1983). To preserve for appellate review a complaint that a sentence violates this requirement and amounts to 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. TEX. R. APP. P. 33.1(a); Rhoades v. State, 934 S.W.2d 113, 120 (Tex. Crim. App. 1996) (concluding that defendant waived error because he presented argument for first time on appeal); Wynn v. State, 219 S.W.3d 54, 61 (Tex. App.—Houston [1st Dist.] 2006, pet ref'd) (holding that defendant's failure to object to life sentence as cruel and unusual punishment waived error); Solis v. State, 945 S.W.2d 300, 301 (Tex. App.—Houston [1st Dist.] 1997, pet. ref'd) (holding that defendant could not assert cruel and unusual punishment for first time on appeal).
After the trial court announced its sentence at the end of the punishment hearing, Wilhite did not object to the assessed punishment either orally or in a motion for new trial. See Solis, 945 S.W.2d at 301. Accordingly, we hold that Wilhite waived his complaint. See Hookie v. State, 136 S.W.3d 671, 679-80 (Tex. App.—Texarkana 2004, no pet.) (holding appellant waived disproportionality claim for failure to state constitutional objection of cruel and unusual punishment at time sentence was imposed); Trahan v. State, 991 S.W.2d 936, 939 (Tex. App.—Houston [1st Dist.] 1999, pet. dism'd) (holding that defendant may waive even claim of constitutional error by failing to make timely and adequate objection).
Wilhite contends that a two year sentence is a fundamental error affecting substantial rights, not requiring an objection in the trial court. See TEX. RULE EVID. 103(e) (providing that, "In criminal cases, a court may take notice of a fundamental error affecting a substantial right, even if the claim of error was not properly preserved."). Because Wilhite's sentence falls within the statutory range, it does not constitute fundamental error. See Young v. State, 425 S.W.3d 469, 474 (Tex. App.—Houston [1st Dist.] 2012, pet. ref'd) (concluding that sentence at lower end of statutory range not fundamental error); Trevino v. State, 174 S.W.3d 925, 928 (Tex. App.—Corpus Christi 2005, pet. ref'd) (holding that complaint of cruel and unusual punishment based on sentence that falls within statutory punishment range does not constitute fundamental error).
Conclusion
We affirm the judgment of the trial court.
Jane Bland
Justice Panel consists of Chief Justice Radack and Justices Jennings and Bland. Do not publish. TEX. R. APP. P. 47.2(b).