Opinion
No. 06-16-00202-CR
06-20-2017
XAVIAN CORTEZ SANDERS, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 124th District Court Gregg County, Texas
Trial Court No. 45093-B Before Morriss, C.J., Moseley and Burgess, JJ.
Memorandum Opinion by Justice Burgess MEMORANDUM OPINION
Xavian Cortez Sanders entered a guilty plea to the charge of aggravated assault causing serious bodily injury. Pursuant to a plea agreement, the trial court sentenced Sanders to five years' deferred adjudication community supervision. As a condition of community supervision, Sanders was ordered to complete a treatment program for a term of not less than ninety days or more than one year in a Substance Abuse Felony Punishment (SAFP) Facility. Sanders made no objection in the trial court to being ordered to complete the program. When Sanders was unsuccessfully discharged from the program, the State filed a motion to revoke his community supervision based on the discharge. Sanders pled "true" to the allegations in the State's petition to revoke, and Sanders was sentenced to fifteen years' incarceration.
On appeal, Sanders contends (1) that the trial court erred when it imposed "SAFP" in-patient drug treatment as a condition of community supervision because Sanders was subject to incarceration without a conviction and (2) that the fifteen-year sentence amounts to cruel and unusual punishment. Because we find that Sanders failed to preserve error with respect to his involuntary servitude complaint and his complaint of cruel and unusual punishment, we affirm the trial court's judgment.
I. Sanders Failed to Preserve his Argument Regarding Involuntary Servitude
Generally, in order to present a complaint for appellate review, the record must show that the complaining party made a timely request, objection, or motion to the trial court specifically stating the ground for the ruling she sought and that she obtained the trial court's ruling on the request, objection, or motion. TEX. R. APP. P. 33.1(a). The preservation rule gives the trial court "an opportunity to correct the error." Pena v. State, 285 S.W.3d 459, 464 (Tex. Crim. App. 2009) (citing Reyna v. State, 168 S.W.3d 173, 179 (Tex. Crim. App. 2005)). "Even constitutional errors may be waived by failure to object at trial." Stitt v. State, 102 S.W.3d 845, 848 (Tex. App.—Texarkana 2003, pet. ref'd) (citing Briggs v. State, 789 S.W.2d 918, 924 (Tex. Crim. App. 1990), overruled on other grounds by Karenev v. State, 281 S.W.3d 428, 434 (Tex. Crim. App. 2009)); see Fuller v. State, 253 S.W.3d 220, 232 (Tex. Crim. App. 2008).
We have recently held that constitutional claims of involuntary servitude without a conviction are forfeited if not preserved in the trial court. Harrison v. State, No. 06-16-00171-CR, 2017 WL 1953413, at *1 (Tex. App.—Texarkana May 11, 2017, no pet. h.) (mem. op., not designated for publication); see Howard v. State, No. 06-16-00148-CR, 2017 WL 1173900, at *1 n.3 (Tex. App.—Texarkana Mar. 30, 2017, no pet.) (mem. op., not designated for publication). The record in this case shows that the issue of involuntary servitude was not raised in the trial court. Therefore, the issue was not preserved for our review. TEX. R. APP. P. 33.1(a). We, therefore, overrule this point of error.
Although unpublished cases have no precedential value, we may take guidance from them "as an aid in developing reasoning that may be employed." Carrillo v. State, 98 S.W.3d 789, 794 (Tex. App.—Amarillo 2003, pet. ref'd).
II. Sanders Failed to Preserve his Argument Regarding Cruel and Unusual Punishment
To preserve error relating to the propriety and severity of punishment, including that the sentence imposed constitutes cruel and unusual punishment, a defendant must object to his sentence in the trial court. See Rhoades v. State, 934 S.W.2d 113, 120 (Tex. Crim. App. 1996) (concluding appellant failed to preserve challenge under state constitution's prohibition against cruel and unusual punishment by failing to object in trial court); Rodriguez v. State, 917 S.W.2d 90, 92 (Tex. App.—Amarillo 1996, pet. ref'd) ("[N]othing is preserved for review because appellant failed to raise the severity of his sentence when punishment was assessed or in a new trial motion."). Here, Sanders did not complain about the propriety or severity of his sentence at the time it was imposed or in a motion for new trial. Therefore, we conclude that Sanders failed to preserve this issue for our review. See TEX. R. APP. P. 33.1(a)(1)(A).
III. Conclusion
We affirm the trial court's judgment.
Ralph K. Burgess
Justice Date Submitted: May 17, 2017
Date Decided: June 20, 2017 Do Not Publish