




NUMBER 13-08-367-CR


COURT OF APPEALS


THIRTEENTH DISTRICT OF TEXAS


CORPUS CHRISTI - EDINBURG 

 

WILLIAM HOLLAND,								Appellant,

v.


THE STATE OF TEXAS,							Appellee.
 

On appeal from the 94th District Court of Nueces County, Texas.

 

MEMORANDUM OPINION


Before Chief Justice Valdez and Justices Yañez and Benavides

Memorandum Opinion by Justice Yañez

 
	Without the benefit of a plea bargain, appellant, William Holland, pleaded nolo
contendere to one count of indecency with a child by sexual contact. (1)  The trial court found
him guilty and sentenced him to ten year's imprisonment.  The sole issue raised on appeal
is whether appellant's punishment is disproportionate to the seriousness of the offense, in
violation of the Eighth and Fourteenth Amendments to the United States Constitution. (2)  We
affirm.
I. Background
 At the time of the incident, the victim, appellant's granddaughter, was ten years old. 
Appellant made sexual contact with the victim at his home, while he was watching her after
school.  He pleaded nolo contendere and asked for community supervision.  The trial court
imposed a sentence of ten years, which was within the statutory range of punishment. (3)
II. Disproportionate Punishment
	Appellant contends that his ten-year sentence is unconstitutionally disproportionate
to the severity of his crime, thus violating the Eighth Amendment protection against cruel
and unusual punishment. (4)  The Eighth Amendment does not require strict proportionality
between the crime and the sentence; rather it forbids only extreme sentences that are
grossly disproportionate to the crime. (5)  It is applicable to the states by and through the
Fourteenth Amendment. (6)  The precise contours of the "grossly disproportionate" standard
are unclear, but it applies only in "exceedingly rare" and "extreme" cases. (7)  Texas courts
have traditionally held that a sentence within the statutory range prescribed by the
legislature is not excessive. (8)  However, Texas courts recognize that a prohibition against
grossly disproportionate sentences survives under the federal constitution apart from any
consideration of whether the punishment assessed is within the statute's punishment
range. (9)
	The State argues that appellant failed to raise an objection at trial regarding cruel
and unusual punishment, and thus failed to preserve the issue on appeal.  We agree.
III. Preservation of Error
	Appellant made no objection to his sentence to the trial court, during sentencing, or
in any post-trial motion.  He never claimed the sentence was excessive or cruel.  In order
to preserve an issue for appellate review, a party must present a timely request, objection,
or motion to the trial court stating the specific grounds for the objection and must obtain a
ruling. (10)  It is well-settled that even constitutional rights may be waived by a failure to
object. (11)  Moreover, this Court has held that failing to complain that a sentence is cruel and
unusual, either by objection during the punishment phase of trial or by a motion for new
trial, waives the error. (12)
IV. Conclusion
	Here, appellant neither objected to his sentence nor raised the issue in his motion
for new trial.  We hold appellant failed to preserve the issue for review.  We overrule
appellant's sole issue and affirm the trial court judgment.


   
 LINDA REYNA YAÑEZ,
							Justice






Do not publish.  Tex. R. App. P. 47.2(b).

Memorandum Opinion delivered and filed 
this the 18th day of June, 2009. 
1.  See Tex. Penal Code Ann. § 21.11(a)(1) (Vernon 2003).  Indecency with a child by sexual contact
is a second-degree felony.  See id. at § 21.11(d).
2.  U.S. Const. amend. VIII, XIV.
3.  See Tex. Penal Code Ann. § 12.33 (Vernon 2003) (providing that punishment range for a second-degree felony is imprisonment for a term of two to twenty years, plus an optional fine of $10,000).
4.  U.S. Const. amend. VIII.
5.  See Ewing v. California, 538 U.S. 11, 23 (2003).
6.  See Robinson v. California, 370 U.S. 660, 667 (1962).
7.  See Lockyer v. Andrade, 538 U.S. 63, 73 (2003).
8.  See Jordan v. State, 495 S.W.2d 949, 952 (Tex. Crim. App. 1973); Trevino v. State, 174 S.W.3d
925, 928 (Tex. App.-Corpus Christi 2005, pet. ref'd).  
9.  Winchester v. State, 246 S.W.3d 386, 388 (Tex. App.-Amarillo 2008, pet. ref'd); Mullins v. State,
208 S.W.3d 469, 470 (Tex. App.-Texarkana 2006, no pet.).
10.  Tex. R. App. P. 33.1; see Trevino, 174 S.W.3d at 927 (citing Blue v. State, 41 S.W.3d 129, 131 (Tex.
Crim. App. 2000)).
11.  See Trevino, 174 S.W.3d at 927 (citing Smith v. State, 721 S.W.2d 844, 855 (Tex. Crim. App.
1986)); see also Wright v. State, 28 S.W.3d 526, 536 (Tex. Crim. App. 2000); Luna v. State, 70 S.W.3d 354,
359 (Tex. App.-Corpus Christi 2002, pet. ref'd).		
12.  Quintana v. State, 777 S.W.2d 474, 479 (Tex. App.-Corpus Christi 1989, pet. ref'd).

