               -




                        COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                             NO. 02-11-00118-CR


BRIAN ALEXIS DAVIS                                                 APPELLANT

                                       V.

THE STATE OF TEXAS                                                       STATE


                                    ----------

          FROM THE 213TH DISTRICT COURT OF TARRANT COUNTY

                                    ----------

                        MEMORANDUM OPINION1
                                    ----------

      Appellant Brian Alexis Davis made an open plea of guilty to theft of

property valued at $1,500 to $20,000. At the punishment hearing, the trial court

reviewed the presentence investigation report and took judicial notice of its

contents, heard testimony, reviewed exhibits valuing the stolen property (ladies’

rings), and then found Davis guilty before sentencing him to two years’

confinement. See Tex. Penal Code Ann. § 31.03(e)(4)(A) (West Supp. 2011)

      1
       See Tex. R. App. P. 47.4.
(stating that theft is a state jail felony when the value of the property stolen is

$1,500 or more but less than $20,000), § 12.35 (stating that punishment range

for a state jail felony is confinement in a state jail for any term of not more than

two years or less than 180 days).

      In a single point, Davis now argues that the trial court abused its discretion

by assessing his punishment at two years’ confinement. Davis contends that,

given the facts of this case—i.e., that Davis was suffering from severe heroin

withdrawal and had expressed a desire to provide restitution for the rings that he

took from Lisa Ward while he was renovating her home—the trial court’s

sentence of two years’ incarceration, as opposed to community supervision with

drug rehabilitation and restitution, constitutes disproportionate punishment in

violation of the Eighth Amendment to the United States Constitution.         Davis,

however, did not object to his sentence as violative of the Eighth Amendment at

the time it was imposed, nor did he raise this complaint in a motion for new trial.2

Davis has thus failed to preserve this complaint.3 See Tex. R. App. P. 33.1(a);


      2
      On April 21, 2011, after the trial court’s plenary power had expired
because no motion for new trial or other post-trial motion had been filed that
would extend the trial court’s plenary power, Davis filed a handwritten statement
seeking to have his sentence commuted to community supervision.
      3
       Further, even if we were to reach the merits of Davis’s complaint, his two-
year sentence is within the statutory punishment range for a state jail felony, and
Davis acknowledges this. See Tex. Penal Code Ann. § 12.35. And punishment
imposed within the statutory range is generally not subject to challenge for
excessiveness. See Kim v. State, 283 S.W.3d 473, 475–76 (Tex. App.—Fort
Worth 2009, pet. ref’d) (stating punishment assessed was not excessive when
based on sentencer’s informed normative judgment and fell within the

                                         2
Curry v. State, 910 S.W.2d 490, 497 (Tex. Crim. App. 1995) (stating that

appellant failed to preserve his complaint that his punishment violated the Eighth

Amendment prohibition against cruel and unusual punishment because he urged

no objection at trial); Mercado v. State, 718 S.W.2d 291, 296 (Tex. Crim. App.

1986) (―As a general rule, an appellant may not assert error pertaining to his

sentence or punishment where he failed to object or otherwise raise such error in

the trial court.‖); Laboriel-Guity v. State, 336 S.W.3d 754, 756 (Tex. App.—Fort

Worth 2011, pet. ref’d) (holding that appellant failed to preserve for review his

complaint that the trial court abused its discretion by sentencing him to thirty

years’ confinement for aggravated robbery when appellant failed to object at

sentencing or to file a motion for new trial challenging his sentence’s severity);

see also Kim, 283 S.W.3d at 475. We therefore overrule Davis’s sole point and

affirm the trial court’s judgment.



                                                   SUE WALKER
                                                   JUSTICE


legislatively prescribed range); Dale v. State, 170 S.W.3d 797, 799 (Tex. App.—
Fort Worth 2005, no pet.) (―Generally, punishment assessed within the statutory
limits is not excessive, cruel, or unusual punishment.‖). Moreover, the trial judge
stated on the record his concern that if he placed Davis ―on probation, the Wards
still would not receive their restitution.‖ The trial court thus did not abuse its
discretion by refusing to assess community supervision. See Reyna v. State, No.
12-05-00062-CR, 2005 WL 2035856, at *1 (Tex. App.—Tyler Aug. 24, 2005, no
pet.) (mem. op., not designated for publication) (stating that ―[w]e do not read
[a]rticle 42.12, section (3)(a) [of the Texas Code of Criminal Procedure] to
mandate that the trial court place a defendant on community supervision‖).


                                        3
PANEL: DAUPHINOT, GARDNER, and WALKER, JJ.

DAUPHINOT, J., filed a concurring and dissenting opinion.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: March 8, 2012




                                       4
                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                              NO. 02-11-00118-CR


BRIAN ALEXIS DAVIS                                             APPELLANT

                                        V.

THE STATE OF TEXAS                                                   STATE

                                     ----------

         FROM THE 213TH DISTRICT COURT OF TARRANT COUNTY

                                     ----------

   CONCURRING AND DISSENTING MEMORANDUM OPINION1
                                     ----------

     For the reasons stated in my concurrence to the majority opinion in

Laboriel–Guity v. State2 and in my concurring and dissenting opinions to the

majority opinions in Means v. State3 and Kim v. State,4 I dissent from the


     1
         See Tex. R. App. P. 47.4.
     2
      336 S.W.3d 754, 757–59 (Tex. App.—Fort Worth 2011, pet. ref’d)
(Dauphinot, J., concurring).
     3
      347 S.W.3d 873, 875–76 (Tex. App.—Fort Worth 2011, no pet.)
(Dauphinot, J., concurring and dissenting).
majority’s holding that Appellant failed to preserve his complaint that the trial

court abused its discretion by sentencing him to two years’ confinement in a state

jail facility, violating his rights under the Eighth Amendment.

      I join the alternate holding that the trial court did not abuse its discretion or

violate the Eighth Amendment by sentencing Appellant within the statutory

guidelines or by not probating his sentence.



                                                     LEE ANN DAUPHINOT
                                                     JUSTICE


DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: March 8, 2012




      4
      283 S.W.3d 473, 476–79 (Tex. App.—Fort Worth 2009, pet. ref’d)
(Dauphinot, J., concurring and dissenting).


                                          2
