                         NUMBER 13-15-00208-CR

                            COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                     CORPUS CHRISTI - EDINBURG


VIRGINIA FAYE HOLLOWAY,                                                    Appellant,

                                          v.

THE STATE OF TEXAS,                                                        Appellee.


                   On appeal from the 24th District Court
                        of Jackson County, Texas.


                         MEMORANDUM OPINION

             Before Justices Rodriguez, Garza, and Longoria
              Memorandum Opinion by Justice Rodriguez
      Appellant Virginia Faye Holloway challenges her conviction for felony driving while

intoxicated (DWI), enhanced to a second-degree felony. See TEX. PENAL CODE ANN.

§§ 12.42(a), 49.04(a); 49.09(b)(2) (West, Westlaw through 2015 R.S.). By one issue,
Holloway contends that the trial court assessed cruel and unusual punishment. We

affirm.

                                         I.      BACKGROUND1

          Holloway was indicted for the offense of felony DWI. The indictment also alleged

a prior felony conviction for DWI, making the charge a second-degree felony. See id.

§ 12.42(a) (setting out penalties for repeat and habitual felony offenders).                    Holloway

waived a jury trial and entered her plea of guilty to the court without a plea

recommendation. Holloway pleaded true to the enhancement paragraph that alleged a

prior final felony conviction for the offense of DWI. At the conclusion of the evidence

presented by the State and Holloway, the court found Holloway guilty of the offense

alleged in the indictment and assessed punishment at ten years in the Institutional

Division of the Texas Department of Criminal Justice. See id. § 12.33(a) (West, Westlaw

through 2015 R.S.) (providing that a second-degree felony carries a punishment range of

no fewer than two years' and no more than twenty years' imprisonment). This appeal

followed.

                             II.     CRUEL AND UNUSUAL PUNISHMENT

          By her sole issue, Holloway argues that the trial court should have sentenced her

to a prison sentence shorter than ten years “under evolving standards of decency echoed

in the [E]ighth [A]mendment” of the United States Constitution’s prohibition for cruel and



        1 As this is a memorandum opinion and the parties are familiar with the facts and all issues of law

presented by this case are well settled, we will not recite the facts or the law here except as necessary to
advise the parties of the Court's decision and the basic reasons for it. See TEX. R. APP. P. 47.4.

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unusual punishment.      See U.S. CONST. amends. VIII, XIV.          Holloway claims that

“[a]pplying the evolving standards of decency that mark the progress of a maturing society

[see generally Trop v. Dulles, 356 U.S. 86 (1958)], [her] prison sentence in this cause

should be vacated and rendered for less than 10 years.” In response, the State contends

that Holloway waived this issue because she did not raise a proper objection in the trial

court. Holloway concedes that she neither objected when the trial court pronounced her

sentence nor raised the issue in a motion for new trial or any other post-trial motion.

       The Eighth Amendment to the United States Constitution provides that “[e]xcessive

bail shall not be required, nor excessive fines, nor cruel and unusual punishment inflicted.”

See U.S. CONST. amends. VIII. But this right can be waived if a defendant fails to object

to his sentence on this basis. Smith v. State, 721 S.W.2d 844, 855 (Tex. Crim. App.

1986) (en banc); Noland v. State, 264 S.W.3d 144, 151–52 (Tex. App.—Houston [1st

Dist.] 2007, pet. ref'd); see TEX. R. APP. P. 33.1(a)(1); Quintana v. State, 777 S.W.2d 474,

479 (Tex. App.—Corpus Christi 1989, pet. ref'd) (holding that the defendant waived his

cruel and unusual punishment complaints by failing to object); cf. Papillion v. State, 908

S.W.2d 621, 623 (Tex. App.—Beaumont 1995, no pet.) (holding that the defendant

preserved his issue by timely filing a motion for new trial even though he failed to object

at sentencing or to request withdrawal of his plea).

       To preserve a complaint of cruel and unusual punishment, the criminal defendant

must make a timely, specific objection to the trial court or raise the issue in a motion for

new trial. Rhoades v. State, 934 S.W.2d 113, 120 (Tex. Crim. App. 1996) (en banc);

Noland, 264 S.W.3d at 151–52; Trevino v. State, 174 S.W.3d 925, 927–28 (Tex. App.—

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Corpus Christi 2005, pet. ref'd); see TEX. R. APP. P. 33.1(a). Because Holloway did not

object in the trial court and did not file a motion for new trial, she has not preserved this

issue for our review. See Rhoades, 934 S.W.2d at 120; Noland, 284 S.W.3d 151–52;

Trevino, 174 S.W.3d at 927–28; see also TEX. R. APP. P. 33.1(a).

        Nonetheless, Holloway argues that this Court should consider her sentence as

being disproportionate to her crime because she is an alcoholic and because “alcoholism

is a disease.” She asserts that “[w]hile alcoholism has a behavioral component (i.e., the

afflicted chooses to drink), it is still a sickness, and so is different from crimes such as

theft or assault, which are criminalized violations of moral codes common to all societies

and cultures.”      Under the facts of this case, we are not persuaded by Holloway’s

argument.

        While being an alcoholic is not a crime, driving while intoxicated is. See TEX. PEN.

CODE ANN. § 49.09. Holloway was convicted of at least three misdemeanor DWIs and

two felony DWIs before she received her second-degree felony DWI conviction. 2 In

other words, Holloway demonstrated “a pronounced and prolonged inability to bring [her]

conduct within the social norms prescribed by the criminal laws of the State of Texas,”

which is precisely the reason for habitual offender statutes. Lackey v. State, 881 S.W.2d

418, 422 (Tex. App.—Dallas 1994, pet. ref'd).

        We overrule Holloway’s sole appellate issue.


        2
          The record reveals that prior to the instant DWI offense for which Holloway was convicted in this
cause, she had been convicted of three misdemeanor DWI offenses, two felony DWI offenses, driving with
a suspended license, assault on a public servant, retaliation, silent or abusive calls to 911, and criminal
mischief. And Holloway had been charged with two other misdemeanor DWI offenses which were
disposed of when she pleaded guilty on other offenses.
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                                   III.   CONCLUSION

       We affirm the trial court's judgment.



                                                       NELDA V. RODRIGUEZ
                                                       Justice
Do not publish.
TEX. R. APP. P. 47.2(b).

Delivered and filed the 24th
day of September, 2015.




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