Smith, Roderick Kent v. The State of Texas--Appeal from 174th District Court of Harris County

Affirmed and Memorandum Opinion filed January 11, 2005

Affirmed and Memorandum Opinion filed January 11, 2005.

In The

Fourteenth Court of Appeals

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NO. 14-03-01375-CR

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RODERICK KENT SMITH, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 174th District Court

Harris County, Texas

Trial Court Cause No. 743,415

M EM O R A N D U M O P I N I O N

Appellant s community supervision was revoked and a ten-year sentence imposed after the trial court found appellant had violated the terms of his community supervision. On appeal, he asserts the evidence was legally and factually insufficient to support the revocation, and also that the trial court erred by admitting the hearsay testimony of appellant s former counselor. We affirm.

Factual and Procedural Background

Appellant was convicted of aggravated sexual assault of a child in 1997. Appellant was sentenced to ten years of community supervision and was assessed a $10,000.00 fine. In April of 2003, the State filed a Motion to Revoke Community Supervision, alleging appellant had violated six conditions of his community supervision. In May of 2003, the State amended the motion to include a seventh violation. After a revocation hearing, the trial court revoked appellant s probation, sentenced him to ten years in the Texas Department of Criminal Justice, Institutional Division, and assessed a $10,000.00 fine.

Legal and Factual Sufficiency Challenge

In his first point of error, appellant urges this court to find the evidence was legally and factually insufficient to support the revocation of his community supervision. However, appellant s true complaint is that the the sentence assessed against him was excessive and disproportionate to the crime committed. Thus, appellant s first point of error is a constitutional challenge under the cruel and unusual punishment provisions of the U.S. and Texas constitutions. Appellant failed to raise his constitutional challenge in the trial court. Appellant did not object when he was sentenced, nor did he raise this complaint in his motion for new trial.[1] Thus, he has not preserved the issue on appeal. See, e.g., Curry v. State, 910 S.W.2d 490, 497 (Tex. Crim. App. 1995) (holding error waived due to lack of objection in the trial court); Arellano v. State, No. 14-99-00461-CR, 2000 WL 330029, at *1 (Tex. App. Houston [14th Dist.] Mar. 30, 2000, pet. ref d) (not designated for publication) (finding appellant had not preserved error on claim that punishment was cruel and unusual because appellant neither objected to the sentence nor otherwise challenged it). Even if appellant had preserved the issue, the punishment the trial court assessed ten years is within the statutorily prescribed limits. See Tex. Penal Code 22.021(e) (categorizing aggravated sexual assault as a first degree felony); Tex. Penal Code 12.32 (a) (setting first degree felony punishment range from not less than five years to not more than ninety-nine years). When a trial court assesses a punishment within these limits, the punishment is not cruel and unusual and generally will not be disturbed on appeal. Buerger v. State, 60 S.W.3d 358, 365 (Tex. App. Houston [1st Dist.] 2001, pet. ref d); Mendez v. State, No. 14-01-01270-CR, 2002 WL 31398811, at * 3 (Tex. App. Houston [14th Dist.] Oct. 24, 2002, no pet.) (not designated for publication) ( [T]he imposition of a sentence within the statutory limits is not cruel and unusual punishment. ). We overrule appellant s first point of error.

Hearsay Testimony

In his second point of error, appellant asserts the trial court erred by admitting hearsay testimony from appellant s former counselor, Dr. Peraino. During his direct examination, Dr. Peraino testified without objection that appellant had not attended any of his required counseling sessions in March of 2003.[2] Later, during cross-examination, Dr. Peraino acknowledged that his knowledge of this came from what other counselors told him about appellant s failure to attend sessions. At that point, appellant s counsel objected and asked the trial court to strike the hearsay testimony. We find this objection came too late. To preserve error in admitting this testimony, appellant needed to object each time the inadmissible testimony was offered. Valle v. State, 109 S.W.3d 500, 509 (Tex. Crim. App. 2003); Ethington v. State, 819 S.W.2d 854, 858 (Tex. Crim. App. 1991); Weyandt v. State, 35 S.W.3d 144, 154 (Tex. App. Houston [14th Dist.] 2000, no pet.). Any error the trial court may have committed in admitting this testimony was cured because the same evidence that appellant had failed to attend counseling sessions in March of 2003 came in during Dr. Peraino s direct examination without objection. See Purtell v. State, 761 S.W.2d 360, 368 (Tex. Crim. App. 1988) (en banc) ( It is well-settled that an error in admission of evidence is cured where the same evidence comes in elsewhere without objection; defense counsel must object every time allegedly inadmissible evidence is offered. ). We overrule appellant s second point of error and affirm.

/s/ Wanda McKee Fowler

Justice

Judgment rendered and Opinion filed January 11, 2005.

Panel consists of Chief Justice Hedges and Justices Fowler and Seymore.

Do Not Publish Tex. R. App. P. 47.2(b).

[1] Our review of the record reveals appellant never raised this complaint at the trial court level, either in the original proceedings or the subsequent motion to revoke his community supervision.

[2] One of the violations alleged in the motions to revoke appellant s community supervision was for appellant s failure to attend the treatment sessions in March of 2003.