Corey Moore v. The State of Texas--Appeal from 177th District Court of Harris County

Opinion issued November 16, 2006

In The

Court of Appeals

For The

First District of Texas

NO. 01-05-00536-CR

COREY MOORE, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 177th District Court

Harris County, Texas

Trial Court Cause No. 943,217

MEMORANDUM OPINION

Appellant, Corey Moore, pleaded guilty to manslaughter. See Tex. Pen. Code Ann. 19.04 (Vernon 2003). Appellant also pleaded true to an enhancement paragraph which alleged that he had been previously convicted of the felony offense of aggravated robbery. The trial court deferred adjudication for seven years and placed appellant on community supervision.

Subsequently, the State moved to adjudicate appellant s guilt on the ground that he had violated the terms and conditions of his community supervision. Appellant pleaded not true to the allegations in the motion. Following a hearing on the State s motion, the trial court found that the allegations in the motion were true and that appellant had violated the terms and conditions of his community supervision. The trial court sentenced appellant to confinement for 20 years.

In two points of error, appellant argues that (1) the 20-year sentence constitutes cruel and unusual punishment under the Eighth Amendment of the United States Constitution and (2) the 20-year sentence constitutes cruel and unusual punishment under Article I, Section 13 of the Texas Constitution.

We affirm. Background

Appellant was charged with manslaughter of Edwin Lewis, the complainant, that occurred on or about March 13, 2003. On May 3, 2004, pursuant to a plea agreement with the State, appellant pleaded guilty to the allegations contained within the indictment. Appellant also pleaded true to an enhancement paragraph which alleged he had previously been convicted of the felony of aggravated robbery. Upon acceptance of the plea agreement, the trial court deferred adjudication for seven years; ordered that appellant pay restitution in the amount of $4,700 to Paxton Keyes; avoid contact with April Lewis and the family of the complainant; and pay for the installation of a headstone for complainant s grave. Additionally, as conditions of community supervision, the trial court ordered appellant to attend anger management counseling; pay a fine of $350; perform 360 hours of community service; submit to random drug and alcohol analysis and counseling; pay supervision fees and laboratory fees; work faithfully at suitable employment; remain in Harris County; and participate in a maximum supervision program of the Harris County Supervision Department.

On March 3, 2005, the State moved to adjudicate appellant s guilt on the ground that appellant had violated the terms and conditions of his community supervision. At a hearing on the State s motion on May 19, 2005, appellant pleaded not true to the allegations. Following the hearing, the trial court found that appellant had violated the terms and conditions of his community supervision. The trial court found that appellant had failed to obtain suitable employment; failed to submit to random urinalysis; failed to perform community service; failed to pay the fine, supervision fees, court costs, restitution, laboratory fees, and crime stoppers fees; failed to obtain an offender identification card; and failed to participate in anger management classes. The trial court adjudicated appellant guilty of manslaughter, as charged in the indictment.

Following a punishment hearing, the trial court assessed appellant s punishment at confinement for 20 years in the Institutional Division of the Texas Department of Criminal Justice. The trial court certified appellant s right to appeal. Appellant filed a timely notice of appeal.Cruel and Unusual Punishment

In his first and second points of error, appellant contends that confinement for 20 years is disproportionate to the underlying offense of manslaughter under both the Eighth Amendment of the U.S. Constitution and Article I, Section 13 of the Texas Constitution. See U.S. Const. amend. VIII; Tex. Const. art. I, 13. The State responds that (1) appellant waived his claim of cruel and unusual punishment by failing to make a timely objection to the sentence and (2) confinement for 20 years is not cruel and unusual punishment under the Eighth Amendment.

Appellant admits that he did not lodge any objection at the time of sentencing. The general rule is that a timely objection is a prerequisite to preserving a complaint for appellate review. Tex. R. App. P. 33.1(a); Blue v. State, 41 S.W.3d 129, 131 (Tex. Crim. App. 2000) (plurality op.); Jaenicke v. State, 109 S.W.3d 793, 795 (Tex. App. Houston [1st Dist.] 2003, pet. ref d). Generally, failure to preserve error results in a waiver of the error. Hull v. State, 67 S.W.3d 215, 217 18 (Tex. Crim. App. 2002); Muniz v. State, 851 S.W.2d 238, 255 (Tex. Crim. App. 1993). Failure to make a timely objection can result in the waiver of even a constitutional right. Muniz, 851 S.W.2d at 255; Russell v. State, 665 S.W.2d 771, 777 (Tex. Crim. App. 1983). The right to be free from cruel and unusual punishment may be waived by a failure to make a timely objection to the punishment. See Nicholas v. State, 56 S.W.3d 760, 768 (Tex. App. Houston [14th Dist.] 2001, pet. ref d) (holding [t]he constitutional right to be free from cruel and unusual punishment may be waived ); see also Solis v. State, 945 S.W.2d 300, 301 (Tex. App. Houston [1st Dist.] 1997, pet. ref d).

In response to the State s waiver argument, appellant responds that, during closing argument, trial counsel explicitly implored the court to impose a minimal sentence and specifically argued proportionality of sentencing. // Appellant contends that trial counsel s statements during his closing argument amount to an Eighth Amendment proportionality objection. Moreover, appellant contends that he was not required to raise an additional objection at the time of sentencing. We disagree.

To preserve error, an objection must be timely. Tex. R. App. P. 33.1(a)(1). To be considered timely, an objection must be made at the first opportunity or as soon as its basis becomes apparent. Wilson v. State, 44 S.W.3d 602, 606 (Tex. App. Fort Worth 2001, pet. ref d); see also Dinkins v. State, 894 S.W.2d 330, 355 (Tex. Crim. App. 1995). At closing argument, trial counsel had no way of knowing what sentence the trial court would ultimately impose. Any such objection during that time would have been premature. Premature objections do not preserve error for appeal. Critchfield v. Smith, 151 S.W.3d 225, 235 (Tex. App. Tyler 2004, pet. denied); Singleton v. State, Nos. 05-92-01702-CR, 05-92-01703-CR, 05-92-01704-CR, 1993 WL 493734, at *3 (Tex. App. Dallas Nov. 30, 1993, pet. ref d) (not designated for publication); Riley v. State, No. 10-02-202-CR, 2003 WL 23120120, at *1 (Tex. App. Waco Dec. 31, 2003, pet. ref d) (mem. op.). Had appellant s statements during closing argument amounted to an objection, the objection would have been premature and would not have preserved error for appeal. Because appellant made no timely objection to his sentence, we conclude that appellant waived his complaint on appeal. See Tex. R. App. P. 33.1.

Even if the issue were not waived, the trial court s assessment of punishment did not constitute cruel and unusual punishment. In support of his contention that the 20-year sentence imposed upon him constitutes cruel and unusual punishment, appellant cites Solem v. Helm, 463 U.S. 277, 103 S. Ct. 3001 (1983). In Solem, the Supreme Court held that criminal sentences must be proportionate to the crime and that even a sentence within the statutorily prescribed range may violate the Eighth Amendment. Id. at 290, 103 S. Ct. at 3009. The Court also stated, however, that [r]eviewing courts . . . should grant substantial deference to the broad authority that legislatures necessarily possess in determining the types and limits of punishments for crimes, as well as to the discretion that trial courts possess in sentencing convicted criminals. Id. at 290, 103 S. Ct. at 3009. The Court set forth three objective criteria by which reviewing courts should analyze proportionality claims. They are: (i) the gravity of the offense and the harshness of the penalty; (ii) the sentences imposed on other criminals in the same jurisdiction; and (iii) the sentences imposed for commission of the same crime in other jurisdictions. Id. at 292, 103 S. Ct. at 3011.

In conducting an Eighth Amendment proportionality analysis, we first make a threshold comparison of the offense against the severity of the sentence, judging the gravity of the offense in light of the harm caused or threatened to the victim or society and the culpability of the offender. Culton v. State, 95 S.W.3d 401, 403 (Tex. App. Houston [1st Dist.] 2002, pet, ref d); Moore v. State, 54 S.W.3d 529, 542 (Tex. App. Fort Worth 2001, pet. ref d). We also consider the sentence imposed in light of appellant s prior offense. Culton, 95 S.W.3d at 403. Only upon determining that the sentence is grossly disproportionate to the offense do we need to consider the other two factors from Solem. Id.

In applying this test to the facts of this case, we note that manslaughter is a violent crime. By definition, it results in the gravest of all consequences the death of a human being. Here, appellant s actions alone lead to the death of the complainant. In addition, aggravated robbery, appellant s prior offense, is a violent crime, a first degree felony. See Tex. Pen. Code Ann. 29.03 (Vernon 2003). Appellant has committed two violent felonies, one of which resulted in the death of the complainant. Appellant could have been sentenced from 5 years up to 99 years, or life. Tex. Pen. Code Ann. 12.32 (Vernon 2003). The 20-year sentence he received is at the lower end of the statutorily-prescribed range. We cannot say that a 20-year sentence is grossly disproportionate under these circumstances. Because we have found no gross disproportionality, it is unnecessary to evaluate the sentence under the other two factors of the Solem test.

We overrule appellant s first and second points of error.

Conclusion

We affirm the judgment of the trial court.

Evelyn V. Keyes

Justice

Panel consists of Justices Taft, Keyes, and Hanks.

Do not publish. Tex. R. App. P. 47.2(b).