Matthew Scott Brown 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. 06-04-00078-CR

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MATTHEW SCOTT BROWN, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 71st Judicial District Court

Harrison County, Texas

Trial Court No. 04-0008X

Before Morriss, C.J., Ross and Carter, JJ.

Memorandum Opinion by Justice Ross

MEMORANDUM OPINION

Matthew Scott Brown pled guilty to possessing more than 400 grams of methamphetamine, as charged in the indictment, // and submitted the case to a jury for assessment of punishment. See Tex. Health & Safety Code Ann. 481.115(a), (f) (Vernon 2003). After hearing the evidence and the arguments of counsel, the jury assessed Brown's punishment at twenty-five years' imprisonment. The jury denied Brown's request for community supervision. In a single point of error, Brown contends on appeal that his twenty-five-year sentence is disproportionate to his crime under the Eighth Amendment to the United States Constitution and under Article I, Section 13 of the Texas Constitution. // We overrule Brown's point of error and affirm the trial court's judgment.

The State contends Brown did not present this issue to the trial court and thereby failed to preserve this issue for review by this Court. To preserve the issue of whether a defendant's sentence is disproportionate under the Eighth Amendment or under Article I, Section 13 of the Texas Constitution, the defendant must make a timely objection before the trial court. See Tex. R. App. P. 33.1(a); Hookie v. State, 136 S.W.3d 671, 679 80 (Tex. App. Texarkana 2004, no pet.); see also U.S. Const. amend. VIII; Tex. Const. art. I, 13. After the trial court read the jury's verdict, the court asked if there was anyone who disagreed with the verdict. The court received no response or objection. The trial court then asked Brown if there was any legal reason why the jury's sentence should not be imposed, to which his counsel answered, "No, Your Honor." The trial court then imposed the punishment assessed by the jury and informed Brown regarding his right to appeal.

The State is correct: Brown did not object to the sentence on the ground that it was disproportionate to his crime, nor did he do so on any other ground, at the time the trial court imposed the sentence. Accordingly, Brown did not preserve this issue for our review.

We affirm the trial court's judgment.

Donald R. Ross

Justice

Date Submitted: December 9, 2004

Date Decided: December 17, 2004

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