Opinion
No. 06-06-00198-CR
Submitted: June 7, 2007.
Decided: June 14, 2007. DO NOT PUBLISH.
On Appeal from the 8th Judicial District Court Hopkins County, Texas, Trial Court No. 0518400.
Before MORRISS, C.J., CARTER and MOSELEY, JJ. Memorandum Opinion by Chief Justice MORRISS
MEMORANDUM OPINION
Cameka Domoneak Sullivan appeals from her conviction by the trial court on her open plea of guilty to the offense of possession of marihuana, greater than four ounces but less than five pounds. The court sentenced Sullivan to nine months' confinement in a state-jail facility and a fine of $ 2,000.00. On appeal, Sullivan raises one point of error, contending that the sentence should be set aside and remanded for a new trial on punishment due to factual insufficiency of the evidence during the punishment phase of her trial, citing as her sole authority the case of Alexander v. State, 866 S.W.2d 1, 9 (Tex.Crim.App. 1993). In some situations, appellate courts do review the sufficiency of the evidence at punishment, as in Russeau v. State, 171 S.W.3d 871, 878 (Tex.Crim.App. 2005), where the court looked to see if evidence was legally insufficient to support the jury's affirmative answer to the special issue concerning his or her future dangerousness. Similarly, jury findings on enhancement allegations at punishment are subject to sufficiency review. McFarland v. State, 928 S.W.2d 482, 496 (Tex.Crim.App. 1996); Barnes v. State, 876 S.W.2d 316, 322 (Tex.Crim.App. 1994); Mikel v. State, 167 S.W.3d 556, 560 (Tex.App.-Houston [14th Dist.] 2005, no pet.). The case cited by counsel, Alexander, reviewed an affirmative finding at punishment, and thus properly applied a sufficiency analysis to the evidence at punishment. In this case, however, the entirety of the argument is directed not at jury findings requiring the State (or a defendant) to meet a burden of proof at punishment, but instead argues that the evidence was not sufficient to allow the jury to assess the amount of punishment. That is not the analysis used in reviewing the assessment of an amount of punishment by a fact-finder. The only method available to attack the sentence assessed by a fact-finder is to argue that it exercised its discretion in such an unreasoning or unfair fashion as to be constitutionally unsound. Bradfield v. State, 42 S.W.3d 350, 352 (Tex.App.-Eastland 2001, pet. ref'd); Kanouse v. State, 958 S.W.2d 509, 510 (Tex.App.-Beaumont 1998, no pet.). As the punishment assessed was within the applicable statutory range, the issue as it may be presented is whether the punishment assessed was grossly disproportionate and thus unconstitutional. To preserve a disproportionality claim for appellate review, Sullivan must have presented to the trial court a timely request, objection, or motion that stated the specific grounds for the desired ruling, if not apparent from the context. Tex. R. App. P. 33.1(a)(1); Mosley v. State, 983 S.W.2d 249, 265 (Tex.Crim.App. 1998) (op. on reh'g); Nicholas v. State, 56 S.W.3d 760, 768 (Tex.App.-Houston [14th Dist.] 2001, pet. ref'd) (failure to complain to trial court about consecutive sentencing waived claim of error). No objection or motion in this case, either during the trial proceeding or in the motion for new trial, sets out any constitutional complaint. Thus, the claimed error has not been preserved for our review. We further note that, even if the contention had been preserved for review, there is no evidence in the record comparing the sentences imposed on persons in Texas with sentences imposed against defendants in other jurisdictions who committed a similar offense. Thus, the issue could not prevail in any event. See Mullins v. State, 208 S.W.3d 469, 470 (Tex.App.-Texarkana 2006, no pet.). There being no other issues before us, we affirm the judgment of the trial court.
See Tex. Health Safety Code Ann. § 481.121(b)(3) (Vernon 2003).
Similarly, other offenses in the Texas Penal Code place the burden of proof on the defendant to prove certain issues by a preponderance of the evidence at the punishment phase of trial, and a type of sufficiency review is also appropriate for those issues — for example, release of a kidnapping victim in a safe place. See Tex. Penal Code Ann. § 20.04(d) (Vernon 2003); Cleveland v. State, 177 S.W.3d 374, 385 (Tex.App.-Houston [1st Dist.] 2005, pet. ref'd), cert. denied, ___ U.S. ___, 126 S.Ct. 1774 (2006).
See, e.g., McGinn v. State, 961 S.W.2d 161, 169 (Tex.Crim.App. 1998).
See Hyde v. State, 723 S.W.2d 754, 755 (Tex.App.-Texarkana 1986, no pet.) (holding that we had no authority to review the reasonableness of punishments assessed by the juries and the trial courts of this State if within the range of punishment prescribed by statute for the offense, except under a disproportionality analysis).