Kelvin Fisher v. The State of Texas--Appeal from 71st District Court of Harrison County

In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
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No. 06-07-00091-CR
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KELVIN FISHER, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 71st Judicial District Court
Harrison County, Texas
Trial Court No. 06-0010X
Before Morriss, C.J., Carter and Moseley, JJ.
Memorandum Opinion by Chief Justice Morriss
MEMORANDUM OPINION

Kelvin Fisher has appealed from his jury conviction on his plea of guilty to the offense of aggravated assault with a deadly weapon. See Tex. Penal Code Ann. 22.02 (Vernon Supp. 2007). The jury assessed Fisher's punishment at fourteen years' imprisonment.

On appeal, Fisher contends his sentence is disproportionate to the crime, citing Solem v. Helm, 463 U.S. 277 (1983), and Davis v. State, 905 S.W.2d 655 (Tex. App.--Texarkana 1995, pet. ref'd).

To preserve such a disproportionate sentencing complaint for appellate review, Fisher 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.), Fisher did not file a motion for new trial. Fisher has not preserved such an issue for appeal.

Therefore, we affirm the trial court's judgment.

 

Josh R. Morriss, III

Chief Justice

 

Date Submitted: October 29, 2007

Date Decided: November 7, 2007

 

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