Steven Wayne Simmons v. The State of Texas Appeal from 422nd Judicial District Court of Kaufman County (memorandum opinion)

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AFFIRMED and Opinion Filed November 20, 2018 S In The Court of Appeals Fifth District of Texas at Dallas No. 05-17-00786-CR STEVEN WAYNE SIMMONS, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 422nd Judicial District Court Kaufman County, Texas Trial Court Cause No. 16-90142-422-F MEMORANDUM OPINION Before Justices Stoddart, Whitehill, and Boatright Opinion by Justice Whitehill A jury found appellant Steven Wayne Simmons guilty of burglary of a habitation, a firstdegree felony. Appellant elected for the court to assess punishment, and the judge imposed a thirty-year prison sentence. Appellant raises two issues on appeal: (i) the sentence violates the Eighth Amendment because it is grossly disproportionate to the offense and inappropriate to the offender and (ii) the sentence violates Texas Constitution article I, § 13, for the same reasons. We overrule appellant’s issues because he did not preserve them in the trial court. Error preservation is a systemic requirement on appeal, and the court of criminal appeals has instructed us not to address the merits of unpreserved issues. See Ford v. State, 305 S.W.3d 530, 532 (Tex. Crim. App. 2009); see also TEX. R. APP. P. 33.1(a)(1). The constitutional rights appellant invokes must be preserved in the trial court. See, e.g., Sims v. State, No. 05-16-00669- CR, 2017 WL 2224543, at *1 (Tex. App.—Dallas May 22, 2017, no pet.) (mem. op., not designated for publication); Bell v. State, 326 S.W.3d 716, 724 (Tex. App.—Dallas 2010, pet. dism’d, untimely filed). Appellant did not object when the trial court pronounced his sentence. Although he filed a new trial motion, the motion raised no complaint about his sentence. Accordingly, appellant did not preserve his issues for appellate review, and we overrule them. See Cox v. State, No. 05-1700522-CR, 2018 WL 1149568, at *1 (Tex. App.—Dallas Mar. 5, 2018, no pet.) (mem. op., not designated for publication). We affirm the trial court’s judgment. /Bill Whitehill/ BILL WHITEHILL JUSTICE Do Not Publish TEX. R. APP. P. 47.2(b) 170786F.U05 –2– S Court of Appeals Fifth District of Texas at Dallas JUDGMENT STEVEN WAYNE SIMMONS, Appellant No. 05-17-00786-CR On Appeal from the 422nd Judicial District Court, Kaufman County, Texas Trial Court Cause No. 16-90142-422-F. Opinion delivered by Justice Whitehill. Justices Stoddart and Boatright participating. V. THE STATE OF TEXAS, Appellee Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED. Judgment entered November 20, 2018. –3–