Eddie Wayne Allen, Jr. v. The State of Texas--Appeal from 124th District Court of Gregg County

In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
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No. 06-07-00097-CR
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EDDIE WAYNE ALLEN, JR., Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 124th Judicial District Court
Gregg County, Texas
Trial Court No. 33869-B
Before Morriss, C.J., Carter and Moseley, JJ.
Memorandum Opinion by Chief Justice Morriss
MEMORANDUM OPINION

Eddie Wayne Allen, Jr., has appealed from his conviction for driving while intoxicated, subsequent offense. See Tex. Penal Code Ann. 49.04 (Vernon 2003), 49.09(b) (Vernon Supp. 2006). Allen pled guilty and stipulated to the evidence. He was sentenced by the trial court to five years' imprisonment.

On appeal, Allen contends that the punishment assessed is disproportionate to his crime. To preserve his complaint for appellate review, Allen must have presented to the trial court a timely request, objection, or motion that stated the specific grounds for the desired ruling, or the complaint must be apparent from the context. See Tex. R. App. P. 33.1(a)(1); Harrison v. State, 187 S.W.3d 429, 433 (Tex. Crim. App. 2005); Williams v. State, 191 S.W.3d 242, 262 (Tex. App.--Austin 2006, no pet.) (claims of cruel and unusual punishment must be presented in timely manner); Nicholas v. State, 56 S.W.3d 760, 768 (Tex. App.--Houston [14th Dist.] 2001, pet. ref'd) (failure to complain to trial court that sentences were cruel and unusual waived claim of error for appellate review). We have reviewed the record of the trial proceeding. No relevant request, objection or motion was made. And, while this Court has held that a motion for new trial is an appropriate way to preserve this type of claim for review (see Williamson v. State, 175 S.W.3d 522, 523-24 (Tex. App.--Texarkana 2005, no pet.); Delacruz v. State, 167 S.W.3d 904 (Tex. App.--Texarkana 2005, no pet.)), Allen did not file a motion for new trial. Allen has not preserved this issue for appeal.

Therefore, we affirm the trial court's judgment.

 

Josh R. Morriss, III

Chief Justice

Date Submitted: September 26, 2007

Date Decided: September 27, 2007

 

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