Christopher Joseph Hudson v. The State of Texas--Appeal from 144th Judicial District Court of Bexar County

MEMORANDUM OPINION

No. 04-05-00060-CR

Christopher HUDSON,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 144th Judicial District Court, Bexar County, Texas

Trial Court No. 2003-CR-9672

Honorable Mark Luitjen, Judge Presiding

Opinion by: Sandee Bryan Marion, Justice

Sitting: Sarah B. Duncan, Justice

Karen Angelini, Justice

Sandee Bryan Marion, Justice

Delivered and Filed: October 19, 2005

AFFIRMED

Defendant, Christopher Hudson, pled nolo contendere to possession of a controlled substance. The trial court placed defendant on deferred adjudication community supervision for a term of eight years. The State subsequently filed a Motion to Enter Adjudication of Guilt and Revoke Community Supervision. Defendant pled true to an allegation of escape, which violated the terms of his deferred adjudication. The trial court revoked defendant s deferred adjudication, entered an adjudication of guilt, and sentenced him to seven years confinement and a $5,000 fine.

On appeal, defendant asserts his sentence is disproportionate to the gravity of the charged offense under the United States Constitution and the Texas Constitution. As a prerequisite to presenting a complaint for appellate review, however, the record must show that the complaint was made to the trial court by timely request, objection, or motion stating the grounds for the ruling the complaining party desired with sufficient specificity to make the trial court aware of the complaint. See Tex. R. App. P. 33.1(a); see also Solis v. State, 945 S.W.2d 300, 301 (Tex. App. Houston [1st Dist.] 1997, pet. ref d). Here, the record indicates defendant presented a specific complaint under the United States Constitution to the trial court. However, the record does not indicate defendant presented any specific complaint under the Texas Constitution. Accordingly, defendant has not preserved his complaint under the Texas Constitution for appellate review.

Under the United States Constitution a state criminal sentence must be proportionate to the crime for which the defendant has been convicted. Puga v. State, 916 S.W.2d 547, 548 (Tex. App. San Antonio 1996, no pet.). Punishment [is] grossly disproportionate to a crime only when an objective comparison of the gravity of the offense against the severity of the sentence reveals the sentence to be extreme. Baldridge v. State, 77 S.W.3d 890, 893 (Tex. App. Houston [14th Dist.] 2002, pet. ref d); see also Harmelin v. Michigan, 501 U.S. 957, 1004-1005 (1991) (Kennedy, J., plurality op.). If the sentence is disproportionate to the offense committed, the appellate court will compare the sentence to: (1) the gravity of the offense and the harshness of the penalty; (2) sentences for similar crimes in the same jurisdiction; and (3) sentences for the same crime in other jurisdictions. Eiland v. State, 993 S.W.2d 215, 217 (Tex. App. San Antonio 1999, no pet.). We consider the second and third factors only if we find that the sentence is disproportionate to the offense committed. Id.

Once a trial court adjudicates a defendant s guilt after previously defining adjudication, the entire range of punishment is open to the court. See Von Schounmacher v. State, 5 S.W.3d 221, 223 (Tex. Crim. App. 1999). Here, the punishment range for a third degree felony, such as possession of a controlled substance, is any term of not more than ten years or less than two years and a fine not to exceed $10,000. Tex. Health & Safety Code Ann. 481.102(3)(D), 481.115(c) (Vernon 2003); Tex. Pen. Code Ann. 12.34 (Vernon 2003). The trial court sentenced defendant to seven years confinement and a $5,000 fine. Because the punishment is within the range proscribed by statute, it is not grossly disproportionate to the crime. See Darden v. State, 430 S.W.2d 494, 496 (Tex. Crim. App. 1968) ( If the punishment is within that prescribed by the statute, it is beyond the province of this Court to pass upon the question of excessive punishment. ).

We overrule defendant s issue on appeal and affirm the trial court s judgment.

Sandee Bryan Marion, Justice

DO NOT PUBLISH