                        COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                             NO. 02-10-00161-CR
                             NO. 02-10-00162-CR


DAVID ALLEN RUSSELL                                                APPELLANT

                                       V.

THE STATE OF TEXAS                                                      STATE


                                    ----------

        FROM THE 396TH DISTRICT COURT OF TARRANT COUNTY

                                    ----------

                                  OPINION
                                    ----------

      The trial court adjudicated Appellant David Allen Russell guilty of two

counts of indecency with a child by contact in cause 0747847D and two counts of

indecency with a child by contact in cause 0750351D on his pleas of true to

allegations that he had violated the terms and conditions of his deferred

adjudication community supervision. The trial court sentenced Russell to fifteen

years’ confinement in each cause. In a single issue, Russell argues that his
fifteen-year sentences violate the Eighth Amendment’s prohibition against

grossly disproportionate sentences.1 We will affirm.

      This court stated the following in Kim v. State:

             It is axiomatic that errors that are asserted on the part of the
      trial court must generally be brought to the trial court’s attention in
      order to afford the trial court an opportunity to correct the error, if
      any. To preserve for appellate review a complaint that a sentence is
      grossly disproportionate, constituting cruel and unusual punishment,
      a defendant must present to the trial court a timely request,
      objection, or motion stating the specific grounds for the ruling
      desired.

            Kim’s complaint about the alleged disproportionality of his
      sentence was not raised at the time it was imposed or in a motion for
      new trial. Therefore, he preserved nothing for our review.

283 S.W.3d 473, 475 (Tex. App.—Fort Worth 2009, pet. ref’d) (citations omitted).

      Similarly, here, Russell did not assert any objection when the trial court

sentenced him to fifteen years’ confinement in each cause, nor did he file a

motion for new trial in either cause raising the disproportionality argument that he

asserts now in this appeal. Consequently, Russell failed to preserve this issue

for appellate review.2 See id.; Noland v. State, 264 S.W.3d 144, 151–52 (Tex.

App.—Houston [1st Dist.] 2007, pet. ref’d) (holding that appellant failed to

preserve argument that sentence was grossly disproportionate to offense); Wynn


      1
       Indecency with a child by contact, a second-degree felony, is punishable
by a term of imprisonment of not more than twenty years or less than two years.
Tex. Penal Code Ann. §§ 12.33(a), 21.11(d) (Vernon Supp. 2010).
      2
     We decline Russell’s unsupported invitation ―to treat the Eighth
Amendment issues similar to those regarding ineffective assistance of counsel.‖


                                         2
v. State, 219 S.W.3d 54, 61 (Tex. App.—Houston [1st Dist.] 2006, no pet.)

(same); Smith v. State, 10 S.W.3d 48, 49 (Tex. App.—Texarkana 1999, no pet.)

(same); Kahn v. State, No. 05-08-01223-CR, 2010 WL 2293411, at *7–8 (Tex.

App.—Dallas June 9, 2010, no pet.) (not designated for publication) (same); see

also 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.‖). We overrule Russell’s sole issue and affirm the trial court’s judgments.




                                                   BILL MEIER
                                                   JUSTICE

PANEL: DAUPHINOT, MEIER, and GABRIEL, JJ.

DAUPHINOT, J. filed a concurring opinion.

GABRIEL, J. concurs without opinion.

PUBLISH

DELIVERED: April 7, 2011




                                         3
                       COURT OF APPEALS
                       SECOND DISTRICT OF TEXAS
                            FORT WORTH

                           NO. 02-10-00161-CR
                           NO. 02-10-00162-CR


DAVID ALLEN RUSSELL                                            APPELLANT

                                     V.

THE STATE OF TEXAS                                                  STATE


                                  ----------

         FROM THE 396TH DISTRICT COURT OF TARRANT COUNTY

                                  ----------

                          CONCURRING OPINION
                                  ----------

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

Laboriel-Guity v. State1 and in my concurring and dissenting opinion to the




     1
       No. 02-10-00175-CR, 2011 WL 167257, at *3–4 (Tex. App.—Fort Worth
Jan. 13, 2011, pet. filed) (Dauphinot, J., concurring).
majority opinion in Kim v. State,2 I cannot join the majority opinion’s rationale

here but must respectfully concur only in the result.




                                                    LEE ANN DAUPHINOT
                                                    JUSTICE

PUBLISH

DELIVERED: April 7, 2011




      2
      283 S.W.3d 473, 476–79 (Tex. App.—Fort Worth 2009, pet. ref’d)
(Dauphinot, J., concurring and dissenting).


                                         2
