
                           NO. 07-10-0295-CR

                        IN THE COURT OF APPEALS

                   FOR THE SEVENTH DISTRICT OF TEXAS

                              AT AMARILLO

                                PANEL C

                            DECEMBER 16, 2010








                    WILLIE EARL LEFLORE, APPELLANTS


                                   v.


                      THE STATE OF TEXAS, APPELLEE





            FROM THE 432ND DISTRICT COURT OF TARRANT COUNTY;

             NO. 1065684D; HONORABLE RUBEN GONZALEZ, JUDGE





Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.


                           MEMORANDUM OPINION

      Appellant, Willie Earl Leflore, pled  guilty  in  open  court  to
possession of a controlled substance (cocaine) in  an  amount  of  four
grams or more but less than 200 grams with  intent  to  deliver[1]  and
was sentenced to eighteen years confinement.   In  a  single  point  of
error, Appellant asserts his sentence  of  eighteen  years  confinement
constitutes cruel and unusual punishment under the Eighth Amendment  of
the United States Constitution.[2]

                               Background

      On July 25,  2007,  a  Tarrant  County  Grand  Jury  returned  an
indictment  against   Appellant   for   intentionally   and   knowingly
possessing four grams or more, but less  than  400  grams,  of  cocaine
with  intent  to  deliver,  and  the   lesser   included   offense   of
possession.[3]  And, on June 18,  2008,  the  State  filed  a  habitual
offender and enhancement notice alleging Appellant had  been  convicted
in Mississippi for two felonies, selling cocaine in 1991  and  burglary
in 1980.

      On December 7, 2009, Appellant  pled  guilty  to  the  indictment
after it was amended  by  the  State  to  delete  the  lesser  included
offense.  The State also waived its habitual  offender  notice.   Prior
to taking Appellant's plea, the trial court admonished  Appellant  that
the range of punishment was by imprisonment for life or a term  of  not
more than ninety-nine years or less than five  years.   Appellant  then
entered his plea of guilty.

      On April 15, 2010, a sentencing hearing was held.   The  evidence
at the hearing indicated Appellant was convicted of felony burglary  in
February 1980 and received  four  years  probation.   Less  than  three
weeks later, he violated his parole by  carrying  a  concealed  weapon.
His  parole  was  revoked  and  he  was  sentenced   to   three   years
confinement.  In March 1981, he was paroled and, in May  1982,  he  was
discharged from  parole.   In  September  1991,  he  was  convicted  of
selling cocaine and was sentenced  to  twenty  years  confinement.   In
February 2001, he was paroled.  After his arrest in May  2007,  he  was
released  on  bond  subject  to  supervision  by  the  Tarrant   County
Community Supervisions and Corrections Department.  While  on  bond  he
 violated the conditions of his bond by testing positive for drug  use.


      Appellant's counsel sought probation citing that  the  amount  of
the cocaine he possessed, 4.77 grams, was significantly closer to  four
grams than two hundred grams.  He also pointed out that  Appellant  had
been out of prison for eight years with a consistent work  history  and
stable family  life.   The  State,  on  the  other  hand,  requested  a
substantial amount of penitentiary  time  based  on  Appellant's  prior
criminal history.  The State also pointed out that, at the time of  his
arrest, there were digital scales  in  his  car  covered  with  residue
indicative of selling drugs, not just possession.   Although  Appellant
had been out of  prison  since  2001,  the  State  asserted  there  was
evidence that, since 2006, he had been purchasing and  selling  cocaine
on a continual basis.

      After considering the evidence  and  arguments  of  counsel,  the
trial court found Appellant guilty and sentenced him to eighteen  years
confinement.  Thereafter,  Appellant's  motion  for  a  new  trial  was
denied and this appeal followed.


                               Discussion

      On appeal, Appellant makes many of the  same  arguments  made  at
the sentencing proceeding and asserts that his  sentence,  even  though
within  the  range  of  punishment  provided  by  law,   violates   the
strictures of the Eighth Amendment of the  United  States  Constitution
because the sentence is cruel and unusual.

      The State contends that Appellant did not preserve his  complaint
for appellate review.  We agree.   Appellant  did  not  object  to  his
sentence at the time of sentencing.  Neither did  Appellant  allege  an
Eighth Amendment violation in  his  motion  for  a  new  trial.   As  a
prerequisite to presenting a complaint for appellate review,  Appellant
must present to the trial court a timely request, objection, or  motion
stating the specific grounds for the desired ruling.  Tex. R.  App.  P.
33.1(a)(1).  Constitutional rights, including  the  right  to  be  free
from cruel and unusual punishment,  may  be  waived  by  a  failure  to
object.  See Castaneda v. State, 135  S.W.3d  719,  723  (Tex.Crim.App.
2003) (citing Rhoades v. State,  934  S.W.2d  113,  120  (Tex.Crim.App.
1996)).  Under the  facts  of  this  case,  we  find  that  Appellant's
complaint that his sentence is  cruel  and  unusual  under  the  Eighth
Amendment was not preserved for review.  See Castaneda, 135  S.W.3d  at
723; Noland v. State, 264 S.W.3d 144,  151-52  (Tex.App.--Houston  [1st
Dist.] 2007, pet. ref'd).

      That said, even if Appellant  had  preserved  his  complaint,  he
would not  succeed  on  his  claim.   The  Eighth  Amendment  prohibits
punishment that is "grossly disproportionate" to the offense for  which
a defendant has been convicted.  See Winchester v.  State,  246  S.W.3d
386,  389  (Tex.App.--Amarillo  2008,  pet.  ref'd).   In   determining
whether a sentence is "grossly disproportionate," the  reviewing  court
must first compare the gravity of the offense with the severity of  the
sentence.  Id. at 390.

      Appellant has two prior felony  convictions,  including  one  for
selling drugs.  When he was arrested, he was in  possession  of  nearly
five grams of cocaine and a set  of  digital  scales  with  residue  on
them.  Thus, there was evidence  Appellant  was  again  selling  drugs.
Despite having spent nearly ten  years  in  prison  for  a  prior  drug
offense, he was arrested for a similar  drug  offense  only  six  years
after his release.  And, while on  bond  pending  disposition  of  this
case, he tested positive for drug use.  Appellant's sentence is  within
the statutory range of punishment for the offense committed and,  given
the circumstances of his arrest, his prior criminal  history,  and  the
violation of the conditions of his bond, we  cannot  say  his  sentence
was grossly disproportionate to the gravity of the offense  upon  which
his  sentence  is  based.   See  Winchester,   246   S.W.3d   at   391.
Appellant's sole point of error is overruled.

                               Conclusion

      The trial court’s judgment is affirmed.



                                             Patrick A. Pirtle
                                                         Justice

Do not publish.
-----------------------
[1]See Tex. Health & Safety Code Ann. §  481.112(d)  (West  2010).   An
offense under  this  subsection  is  a  felony  of  the  first  degree,
punishable by imprisonment for life or for any term of  not  more  than
99 years or less than 5 years.  Id. at § 12.32 (West Supp. 2010).

[2]The Eighth Amendment of the  Unites  States  Constitution  prohibits
excessive bail or fines as well as cruel and  unusual  punishment;  See
U.S. Const. amend. VIII, and is applicable to the  States  through  the
Fourteenth Amendment.  Furman v. Georgia, 408 U.S. 238, 239,  92  S.Ct.
2726, 33 L.Ed.2d 346 (1972).

[3]See Tex. Health & Safety Code  Ann.  §§  481.112(d),  481.115  (West
2010), respectively.  Although the indictment originally alleged  "four
grams or more but  less  than  four  hundred  grams,"  the  appropriate
weight category for subsection (d) is four grams or more but less  than
two hundred grams.  Id. at § 481.112(d).  The  indictment  was  amended
to correctly reflect this weight category on December 4, 2009.



