Eric Jamal Sheppard v. The State of Texas--Appeal from 188th District Court of Gregg County

In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

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No. 06-04-00005-CR

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ERIC JAMAL SHEPPARD, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 188th Judicial District Court

Gregg County, Texas

Trial Court No. 22,696-A

Before Morriss, Carter and Grant,* JJ.

Memorandum Opinion by Justice Grant

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*Ben Z. Grant, Justice, Retired, Sitting by Assignment

O P I N I O N

In September of 1995, Eric Jamal Sheppard pleaded guilty to possession of a controlled substance, a second-degree felony. The trial court placed Sheppard on deferred adjudication community supervision for eight years. Seven years and nine months later, in June of 2003, the State applied to revoke Sheppard's community supervision. In its application, the State alleged Sheppard failed to pay his fees and failed to report to his community supervision officer as ordered. Sheppard pleaded true to these allegations, the trial court then found him guilty of possession of a controlled substance, and sentenced him to six years in the Institutional Division of the Texas Department of Criminal Justice. On appeal, Sheppard now contends that the administrative nature of his violations of the terms of community supervision call for a more lenient sentence and that the six-year sentence is excessive and disproportionate.

Error Not Preserved

Sheppard has not preserved his complaint for our review. To preserve a complaint for appellate review, an appellant must have presented the trial court with a timely request, objection, or motion stating the specific grounds for the ruling desired. Tex. R. App. P. 33.1(a)(1)(A). Here, when the trial court imposed Sheppard's sentence, he failed to object, preserving nothing for our review. See Hookie v. State, No. 06-03-00129-CR, 2004 Tex. App. LEXIS 3488, at *19 (Tex. App. Texarkana Apr. 20, 2004, no pet.); Rodriguez v. State, 71 S.W.3d 778, 779 (Tex. App. Texarkana 2002, no pet.); Jackson v. State, 989 S.W.2d 842, 845 (Tex. App. Texarkana 1999, no pet.). The record reveals that Sheppard moved for a new trial. That motion, however, does not specifically raise any complaint regarding the sentence imposed. A general objection preserves nothing for review and is insufficient to apprise the trial court of the complaint urged. Fierro v. State, 706 S.W.2d 310, 318 (Tex. Crim. App. 1986); Henderson v. State, 617 S.W.2d 697, 698 (Tex. Crim. App. [Panel Op.] 1981). Sheppard failed to present the trial court with the contention that the six-year sentence is punishment disproportionate to the offense committed. Not having done so, he cannot present the issue to this Court. See Fierro, 706 S.W.2d at 318.

Sentence Not Grossly Disproportional

Even if Sheppard would have properly preserved error as to this contention, we would conclude that his sentence was not disproportional or excessive. Traditionally, Texas courts have held that, so long as the punishment assessed is within the limits prescribed by a valid law, the punishment is not cruel or unusual within the constitutional prohibition and the sentence is not excessive. Rodriquez v. State, 509 S.W.2d 625, 627 (Tex. Crim. App. 1974); Buchanan v. State, 68 S.W.3d 136, 141 (Tex. App. Texarkana 2001, no pet.). However, we have recognized that, although a sentence may be within the range permitted by statute, it may nevertheless run afoul of the Eighth Amendment prohibition against cruel and unusual punishment. Jackson, 989 S.W.2d at 845.

Three considerations guide our analysis under the Eighth Amendment: (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). Under this analysis, we initially make a threshold comparison of the gravity of the offense against the severity of the sentence and then determine whether the sentence is grossly disproportionate to the offense. The punishment will be 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. McGruder v. Puckett, 954 F.2d 313, 316 (5th Cir. 1992). Only if we find such a gross disproportionality between the offense and the penalty do we go on to compare the sentence imposed to sentences in this and other jurisdictions. Id.; Buchanan, 68 S.W.3d at 141.

Sheppard was convicted of a second-degree felony, punishable up to twenty years. See Tex. Pen. Code Ann. 12.33(a) (Vernon 2003). The record also reveals that Sheppard has a relatively extensive criminal history due to his involvement with controlled substances. // Considering that Sheppard pleaded guilty to a second-degree felony and has a substantial criminal history, we cannot say that a sentence of six years is a grossly disproportionate punishment for a second-degree felony after two failed attempts at community supervision and rehabilitation.

Sheppard contends that the administrative nature of the conditions of the community supervision which he allegedly violated should dictate a lesser sentence. In other words, since he only violated the terms of his community supervision by failing to report and failing to pay fees, he argues that his sentence should not be so severe.

The trial court sentenced Sheppard to six years' confinement for possession of a controlled substance, not for failing to regularly pay his fees or report to his officer. These violations of the terms of his community supervision do nothing to vitiate the severity of the offense to which Sheppard pleaded guilty in 1995. On the trial court's finding that the State's allegations were true, Sheppard was subject to the full range of punishment for the offense for which he was placed on community supervision. A sentence of six years is not a disproportionate sentence for conviction of a second-degree felony. Having determined that Sheppard's sentence is not disproportionate to the offense for which he was convicted, we need not address the remaining two considerations under the Solem analysis. Solem, 493 U.S. at 291.

Conclusion

Sheppard's sentence of six years' imprisonment does not represent an excessive or disproportionate punishment and, thus, does not violate his rights under federal and state constitutions.

We overrule his sole point of error and affirm the trial court's judgment.

Ben Z. Grant

Justice*

*Justice, Retired, Sitting by Assignment

Date Submitted: June 3, 2004

Date Decided: July 30, 2004

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