

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  His parole was revoked and he was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.


