RAYMOND B. YOUNG, Appellant v. THE STATE OF TEXAS, Appellee

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State: Texas

Court: Texas Northern District Court

Docket No: 05-07-00096-CR

Case Date: 12/11/2007

Plaintiff: RAYMOND B. YOUNG, Appellant

Defendant: THE STATE OF TEXAS, Appellee

Preview:RAYMOND B. YOUNG, Appellant v. THE STATE OF TEXAS, Appellee
AFFIRM; Opinion issued December 11, 2007

In The Court of Appeals Fifth District of Texas at Dallas ............................ No. 05-07-00096-CR ............................ RAYMOND B. YOUNG, Appellant V. THE STATE OF TEXAS, Appellee ............................................................. On Appeal from the 195th Judicial District Court Dallas County, Texas Trial Court Cause No. F05-34759-TN ............................................................. OPINION Before Chief Justice Thomas and Justices Lang and Lagarde See Footnote 1 Opinion By Justice Lagarde Appellant Raymond B. Young appeals from his conviction by the trial court for solicitation of a minor for purposes of aggravated sexual assault committed on or about March 11, 2005. See Footnote 2 Without benefit of a plea bargain agreement, appellant signed a judicial confession and pleaded guilty before the trial judge to the charged offense. The trial court found appellant guilty and, after hearing evidence on punishment, assessed appellant's punishment at six years' confinement in prison and a $5,000 fine. See Footnote 3 After appellant's motion for new trial was expressly overruled by the trial court, this appeal ensued. In two issues on appeal appellant contends his six-year prison term is cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments of the United States Constitution and article 1.09 of the Texas Code of Criminal Procedure. U.S. Const. Amends. VIII, XIV; Tex. Code Crim. Proc. Ann. art. 1.09 (Vernon 2005). For reasons that follow, we affirm appellant's conviction. Preservation of Error Initially, we examine the record to determine if appellant's issues have been preserved for our review. To preserve a complaint for appellate review, an appellant must have presented to the trial court a timely request, objection, or motion stating the specific grounds for the ruling desired. Tex. R. App. P. 33.1(a)(1)(A); Rhoades v. State, 934 S.W.2d 113, 119 (Tex. Crim. App. 1996). The Texarkana Court of Appeals addressed the issue of preservation of error in disproportionality cases in Delacruz v. State, 167 S.W.3d 904, 905 (Tex. App.-Texarkana 2005, no pet.). The court stated: This Court has held that a defendant is required to raise a disproportionality objection in a timely manner. Hookie v. State, 136 S.W.3d 671, 679 (Tex. App.-Texarkana 2004, no pet.); Jackson v. State, 989 S.W.2d 842, 845 (Tex. App.Texarkana 1999, no pet.). In a footnote, the Texarkana court clarified: Although we have stated in other opinions that our opinion in Jackson required the objection to be made at the
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time sentence is imposed, that is not a precise rendering of our holding in that case. Compare Rodriguez v. State, 71 S.W.3d 778, 779 (Tex. App.-Texarkana 2002, no pet.); Smith v. State, 10 S.W.3d 48, 49 (Tex. App.-Texarkana 1999, no pet.); see also Quintana v. State, 777 S.W.2d 474, 479 (Tex. App.-Corpus Christi 1989, pet. ref'd) (where appellant does not raise issue of cruel and unusual punishment in punishment hearing or motion for new trial, the argument is waived). We require the objection to be made in a timely fashion, and we find that a motion for new trial, in this context, is an appropriate way to preserve the claim for review. Id. at 905 n.2. And in State v. Bailey, 201 S.W.3d 739, 743 (Tex. Crim. App. 2006), the court of criminal appeals recently stated: We have held that it violates "ordinary notions of procedural default" for a court of appeals to reverse a trial court's decision on a legal theory that the complaining party did not present to the trial court. Hailey v. State, 87 S.W.3d 118, 122 (Tex. Crim. App. 2002) (citing State v. Mercado, 972 S.W.2d 75, 77-78 (Tex. Crim. App. 1998)). Analysis At the time the trial judge announced appellant's sentence of six years in prison and a fine of $5,000, appellant made no objection on any basis. Although appellant filed a motion for new trial, he did not complain in that motion that his sentence was cruel and unusual due to disproportionality. Appellant's new trial motion sought a new trial solely "for the good and sufficient reason that the verdict [wa]s contrary to the law and the evidence." Cf. Delacruz, 167 S.W.3d at 905 (addressing merits when motion for new trial contended sentence was disproportionate to the offense). An appellate court may not reverse a trial court "on a theory that the trial court did not have the opportunity to rule upon and upon which the non-appealing party did not have an opportunity to develop a complete factual record." Bailey, 201 S.W.3d at 743 (quoting Hailey, 87 S.W.3d at 122 (citing Posey v. State, 966 S.W.2d 57, 62 (Tex. Crim. App. 1998)). Because the record shows the error about which appellant claims on appeal was not preserved in the trial court, nothing is presented for our review. We affirm.

SUE LAGARDE JUSTICE, ASSIGNED Do Not Publish Tex. R. App. P. 47 070096F.U05 Footnote 1 The Honorable Sue Lagarde, Justice, Court of Appeals, Fifth District of Texas at Dallas, Retired, sitting by assignment. Footnote 2 The indictment reads, in relevant part, that appellant on or about "the 11th day of March A.D., 2005 in the County of Dallas and said State, did then and there, with intent that an offense be committed, namely: Aggravated Sexual Assault, by any means, to-wit: by telephone and by computer and in person, request, command and attempt to induce MARY, an individual whom the defendant believed to be a person younger than 17 years of age, to engage in specific conduct, to-wit: sexual intercourse, that under the circumstances surrounding the defendant's conduct as the defendant believed them to be, would constitute said offense and would make MARY a party to the commission of said offense . . . ." Footnote 3 The charged offense was a second degree felony. Tex. Pen. Code Ann.

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