Christopher Michael Johnson v. The State of Texas--Appeal from 4th District Court of Rusk County

In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
______________________________
No. 06-06-00029-CR
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CHRISTOPHER MICHAEL JOHNSON, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 4th Judicial District Court
Rusk County, Texas
Trial Court No. CR02-200
Before Morriss, C.J., Ross and Carter, JJ.
Memorandum Opinion by Justice Carter
MEMORANDUM OPINION

On August 12, 2003, Christopher Michael Johnson waived his right to a jury trial and pled guilty to the offense of aggravated assault, see Tex. Pen. Code Ann. 22.02 (Vernon Supp. 2006), as charged in the indictment. The trial court accepted Johnson's plea and, pursuant to a negotiated plea agreement, deferred a finding of guilt and placed Johnson on community supervision for a period of five years. The State subsequently filed an application to adjudicate Johnson's guilt. The trial court conducted a hearing on the State's application November 22, 2005, in which the court found all but one of the violations alleged in the State's application to have occurred, adjudicated Johnson's guilt, and sentenced Johnson to seven years' imprisonment. Johnson now appeals, contending his seven-year sentence is disproportionate to the crime for which he was convicted.

We outlined the method for reviewing disproportionate sentencing claims in Fluellen v. State:

A court's proportionality analysis under the Eighth Amendment should be guided by (1) the gravity of the offense and the harshness of the penalty; (2) the sentences imposed on other criminals in the same jurisdiction; and (3) the sentences imposed for commission of the same crime in other jurisdictions. Solem v. Helm, 463 U.S. 277, 292 (1983). Only if we infer that the sentence is grossly disproportionate to the offense will we then consider the remaining factors of the Solem test and compare the sentence received to sentences for similar crimes in the same jurisdiction and to sentences for the same crime in other jurisdictions. McGruder v. Puckett, 954 F.2d 313, 316 (5th Cir. 1992); see also Davis v. State, 905 S.W.2d 655, 664-65 (Tex. App.--Texarkana 1995, pet. ref'd).

 

71 S.W.3d 870, 873 (Tex. App.--Texarkana 2002, pet. ref'd). We also noted the appellant must first raise this issue in the trial court before it can be considered on appeal. Id. (citing Tex. R. App. P. 33.1(a)).

Johnson did not raise this issue in the trial court. Accordingly, this issue is not preserved for our review, and we must overrule it. Cf. id. at 873. Yet, even if Johnson's contention had otherwise been preserved, 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. See Latham v. State, 20 S.W.3d 63, 69 (Tex. App.--Texarkana 2000, pet. ref'd); Davis, 905 S.W.2d at 664-65. Without an adequate record, we could not begin to consider the merits of such a claim.

As Johnson raises no other issues on appeal, we affirm the trial court's judgment.

 

Jack Carter

Justice

 

Date Submitted: October 9, 2006

Date Decided: October 10, 2006

 

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