                    In The
              Court of Appeals
Sixth Appellate District of Texas at Texarkana


                  No. 06-15-00035-CR



      CEDRIC BERNARD CARLDWELL, Appellant

                           V.

           THE STATE OF TEXAS, Appellee



        On Appeal from the 124th District Court
                Gregg County, Texas
              Trial Court No. 42773-B




      Before Morriss, C.J., Moseley and Burgess, JJ.
       Memorandum Opinion by Justice Moseley
                                    MEMORANDUM OPINION
        Cedric Bernard Carldwell shot and killed Huey Gray. He pled guilty to the murder and,

following a bench trial on punishment, was sentenced to life imprisonment.1 On appeal, Carldwell

argues that the imposition of a life sentence, while within the range of punishment prescribed by

statute, “bec[a]me a disproportionate sentence in view of . . . a plea of guilty.” Thus, Carldwell

contends that the life sentence violated the Eighth Amendment prohibition against cruel and

unusual punishment, which was made applicable to state criminal prosecutions by the Due Process

Clause of the Fourteenth Amendment. See U.S. CONST. amend. VIII. Because we find that

Carldwell has failed to preserve his sole point of error for our review, we affirm the trial court’s

judgment.

        Rule 33.1 of the Texas Rules of Appellate Procedure mandates:

        As a prerequisite to presenting a complaint for appellate review, the record must
        show that:

                (1)    the complaint was made to the trial court by a timely request,
        objection, or motion that:

                        (A)     stated the grounds for the ruling that the complaining party
                 sought from the trial court with sufficient specificity to make the trial court
                 aware of the complaint, unless the specific grounds were apparent from the
                 context; and

                 ....

                 (2)      the trial court:

                        (A)      ruled on the request, objection, or motion, either expressly
                 or implicitly; or

1
 Carldwell also entered a plea of true to the State’s enhancement paragraph, which alleged that he was previously
convicted of the offense of possession of a prohibited weapon.

                                                       2
                     (B)     refused to rule on the request, objection, or motion, and the
               complaining party objected to the refusal.

TEX. R. APP. P. 33.1(a).

       A claim that a sentence is disproportionate is not excused from the requirements of error

preservation. See Stewart v. LaGrand, 526 U.S. 115, 119 (1999) (per curiam); Rhoades v. State,

934 S.W.2d 113, 120 (Tex. Crim. App. 1996). Thus, “[a] constitutionality challenge based on

application to the defendant’s case cannot be raised for the first time on appeal.” Fluellen v. State,

104 S.W.3d 152, 167 (Tex. App.—Texarkana 2003, no pet.) (citing Briggs v. State, 789 S.W.2d

918, 923 (Tex. Crim. App. 1990); Smith v. State, 10 S.W.3d 48, 49 (Tex. App.—Texarkana 1999,

no pet.)); see Garcia v. State, 887 S.W.2d 846, 861 (Tex. Crim. App. 1994).

       Our review of the appellate record demonstrates that Carldwell failed to raise a complaint

that his sentence was disproportionate with the trial court. While Carldwell could have raised this

issue in his motion for new trial, his motion for new trial made no mention of any claim of cruel

and unusual punishment or disproportionate sentence. See Williamson v. State, 175 S.W.3d 522,

523–24 (Tex. App.—Texarkana 2005, no pet.) (citing Delacruz v. State, 167 S.W.3d 904, 905

(Tex. App.—Texarkana 2005, no pet.)).

       As a reviewing court, we should not address the merits of an issue that has not been

preserved for appeal. Wilson v. State, 311 S.W.3d 452, 473 (Tex. Crim. App. 2010) (op. on reh’g)

(per curiam); Sample v. State, 405 S.W.3d 295, 300 (Tex. App.—Fort Worth 2013, pet. ref’d).

Accordingly, because it is not preserved for our review, we overrule Carldwell’s sole point of error

on appeal.

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      Consequently, we affirm the trial court’s judgment.




                                           Bailey C. Moseley
                                           Justice

Date Submitted:     October 9, 2015
Date Decided:       October 13, 2015

Do Not Publish




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