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holding that defendant did not preserve error when he failed to object that his punishment violated "the objective of the system of prohibitions, penalties, and correctional measures" at sentencing
Summary of this case from Garcia v. StateOpinion
Nos. 05-09-00950-CR, 05-09-00951-CR, 05-09-00952-CR, 05-09-00953-CR, 05-09-00954-CR, 05-09-00955-CR, 05-09-00956-CR, 05-09-00957-CR
Opinion Filed June 21, 2010. DO NOT PUBLISH. Tex. R. App. P. 47
On Appeal from the 265th Judicial District Court, Dallas County, Texas, Trial Court Cause Nos. F08-13334-YR, F08-19033-MR, F08-22177-XR, F08-25299-XR, F08-61681-XR, F08-61682-YR, F08-61686-XR, F08-61898-XR.
Before Justices O'NEILL, FRANCIS, and MURPHY.
MEMORANDUM OPINION
Todd Morice Hefley appeals his convictions in eight cases. In a single point of error, appellant contends the trial court abused its discretion by sentencing him to imprisonment in each case. We affirm. The background of these cases and the evidence adduced at the sentencing hearing are well known to the parties; we therefore limit recitation of the facts. We issue this memorandum opinion because the law to be applied is well settled. Tex. R. App. P. 47.4. Appellant waived his right to a jury trial and pleaded guilty to two state jail felony thefts, two instances of evading arrest, burglary of a habitation, robbery, credit card abuse, and possession of a controlled substance with the intent to deliver. Appellant also pleaded true to an enhancement paragraph contained in both the burglary of a habitation and robbery indictments. After finding appellant guilty in each case, the trial court assessed punishment: thirty years' imprisonment in the burglary case, forty-five years' imprisonment and a $10,000 fine in the robbery case, thirty years' imprisonment and a $3000 fine in the possession of a controlled substance case, and two years' confinement in a state jail facility in each of the remaining cases. In his sole point of error, appellant contends the trial court abused its discretion and violated "the objectives of the system of prohibitions, penalties, and correctional measures" of the Texas Penal Code by sentencing him to prison because he has a long-term drug addiction and needs "intensive drug treatment" rather than incarceration. Because of his addiction and "desire for drug treatment," appellant asserts any sentence of imprisonment without permitting him to benefit from drug treatment is "overly harsh" and does not further the penal code's goal of rehabilitation. He further maintains prison would not solve his drug problem or provide the necessary treatment for his addiction and the "only possible source of help" for appellant is a court-ordered stay in the Substance Abuse Felony Punishment Facility. The State responds that appellant failed to preserve his complaint for appellate review and, alternatively, the record does not support appellant's claim that the trial court abused its discretion or violated the objectives of the Texas Penal Code when it sentenced appellant to prison. As a prerequisite to presenting a complaint on appeal, a party must have made a timely and specific request, objection, or motion to the trial court. Tex. R. App. P. 33.1(a)(1)(A). The purpose of the specificity requirement in rule 33.1(a) is to (1) inform the court of the basis of the objection and give him an opportunity to rule on it; and (2) give opposing counsel the opportunity to respond to the complaint. Resendez v. State, 306 S.W.3d 308, 312 (Tex. Crim. App. 2009); see also Zillender v. State, 557 S.W.2d 515, 517 (Tex. Crim. App. 1977). When a party fails to communicate his argument effectively, any error will be deemed forfeited on appeal. Resendez, 306 S.W.3d at 313. The record before us does not reveal any instance in which appellant lodged the specific objection he now complains of on appeal-that sentences of incarceration would constitute abuses of discretion or violate the objectives of the penal code. Appellant did not complain about the sentences at the time they were assessed or in any post-trial motion. Appellant argues, however, that a specific objection to the sentences "would have served no useful purpose" because the objection was apparent from the context (citing Tex. R. Evid. 103(a); Tex. R. App. P. 33.1(a)(1)(A)). Appellant maintains his plea for drug treatment and rehabilitation, supported by the witnesses who testified that he needed such treatment, "put the trial court on notice that a prison term of any length, without drug treatment, was objectionable." We disagree. Appellant's argument assumes no complaint is required under rule 33.1. Although rule 33.1(a)(1)(A) provides that an explanation of the grounds for the court's ruling may not be necessary if "the specific grounds [are] apparent from the context," the plain language of the rule still requires a "complaint" to be made "to the trial court by a timely request, objection, or motion. . . ." Tex. R. App. P. 33.1(a)(1)(A). Thus, a party who fails to put a complaint before the trial court or otherwise preserve the issue for appellate review forfeits his complaint on appeal. Rhoades v. State, 934 S.W.2d 113, 119-20 (Tex. Crim. App. 1996) (noting appellant forfeited claim of cruel and unusual punishment because he failed to lodge objection); Noland v. State, 264 S.W.3d 144, 151-52 (Tex. App.-Houston [1st Dist.] 2007, pet. ref'd) (holding appellant failed to preserve claim of disproportionate sentence). Appellant maintains in circumstances involving "fundamental error[s] in punishment," no objection is required to preserve a ground for appellate review and can be raised for the first time on appeal. Despite this assertion, appellant does not claim any fundamental error exists in this case. To the contrary, appellant concedes the trial court assessed punishment within the statutory range for each of the offenses. As a general rule, punishment assessed within the statutory range for the offense is not unconstitutionally excessive, cruel, or unusual. Castaneda v. State, 135 S.W.3d 719, 723 (Tex. App.-Dallas 2003, no pet). Here, appellant made no objection to his sentences in these cases. In fact, when the trial court asked if there was "[a]ny reason under law now why [appellant] should not be sentenced," appellant's counsel replied "[n]o legal reason." Similarly, in the motions for new trial filed in each case, appellant did not complain the sentences imposed by the trial court constituted abuses of discretion or violations of the penal code's objectives; he only complained the verdicts were "contrary to the law and the evidence." Thus, having failed to object to the sentences at the time they were imposed or complain about the sentences in his motions for new trial, we conclude appellant has not preserved this issue for appellate review. Tex. R. App. P. 33.1(a)(1)(A); Castaneda, 135 S.W.3d at 723. Finally, even assuming appellant had preserved error, the punishments assessed were within the statutory range for each of the offenses. The trial court therefore did not abuse its discretion in sentencing appellant to prison in these cases. See Jackson v. State, 680 S.W.2d 809, 814 (Tex. Crim. App. 1984) (stating general rule that sentence will not be disturbed on appeal if within proper range of punishment). We overrule appellant's sole point of error. We affirm the trial court's judgment in each case.
Tex. Penal Code Ann. § 31.03(a), (e)(4) (Vernon Supp. 2009) (theft); id. § 38.04(a) (Vernon Supp. 2009) (evading arrest); id. § 30.02(a) (Vernon 2003) (burglary); id. § 29.02(a) (Vernon 2003) (robbery); id. § 32.31(b)(1) (Vernon Supp. 2009) (credit card abuse); Tex. Health Safety Code Ann. § 481.112(a), (e) (Vernon Supp. 2009) (possession).