                                 IN THE
                         TENTH COURT OF APPEALS

                                No. 10-10-00394-CR

ALFORD WINKFIELD,
                                                           Appellant
v.

THE STATE OF TEXAS,
                                                           Appellee


                           From the 18th District Court
                             Johnson County, Texas
                              Trial Court No. F43573


                          MEMORANDUM OPINION

      Alford Jay Winkfield appeals from his conviction for aggravated sexual assault

of a child, which was enhanced by two prior convictions. TEX. PEN. CODE ANN. § 22.021

(West 2011). Winkfield pled guilty to the offense and pled true to the two enhancement

paragraphs, but went to the jury to determine punishment. The trial court assessed

Winkfield’s punishment in accordance with the jury’s verdict at life imprisonment. TEX.

PEN. CODE ANN. § 12.42 (West 2011). Winkfield complains that his sentence violates the

Eighth Amendment’s prohibition against cruel and unusual punishment and that his

due process rights were violated because the jury’s note indicated that the sentence was
predetermined by the jury. Because Winkfield did not preserve these complaints by

objecting to the trial court either during trial or in a post-judgment motion, we affirm

the judgment of the trial court.

Cruel and Unusual Punishment

        In his first issue, Winkfield argues the life sentence for the enhanced aggravated

sexual assault of a child offense constitutes cruel and unusual punishment although he

concedes that the sentence is within the statutory range for the offense. He argues on

appeal the sentence is a violation of the Eighth Amendment of the United States

Constitution. However, there is no objection on this ground in the trial court record.

        An appellant must make an objection in the trial court for us to review this issue

for error on appeal. TEX. R. APP. P. 33.1(a). Claims of cruel and unusual punishment

can be waived if not brought before the trial court. See Rhoades v. State, 934 S.W.2d 113,

120 (Tex. Crim. App. 1996) (failure to raise a challenge to sentence under the Eighth

Amendment to the U.S. Constitution in the trial court leads to waiver on appeal);

Noland v. State, 264 S.W.3d 144, 151-52 (Tex. App.—Houston [1st Dist.] 2007, pet. ref’d)

(waiver of cruel and unusual punishment claim occurred because no objection was

made at trial).

        Winkfield did not raise any of his objections to the punishment at the trial court

either at the time of sentencing or in a motion for new trial. As a result, he has waived

them. See TEX. R. APP. P. 33.1(a); Rhoades, 934 S.W.2d at 120. We overrule Winkfield’s

first issue.




Winkfield v. State                                                                  Page 2
Predetermined Sentence

        Winkfield complains in his second issue that his due process rights were violated

because the jury had predetermined his sentence. During its deliberations, the jury sent

out a note asking what the difference is between ninety-nine years and life. Winkfield

affirmatively did not object to the trial court’s response to the question.

        The requirement of an objection to the trial court applies even to due process

violations. See Hull v. State, 67 S.W.3d 215, 217-18 (Tex. Crim. App. 2002); TEX. R. APP. P.

33.1(a). Winkfield did not object during the proceeding or at the time his sentence was

imposed, nor did he raise his due process concerns in a motion for new trial. As a

result, he has waived this complaint as well. See TEX. R. APP. P. 33.1(a). We overrule

Winkfield’s second issue.

Conclusion

        Having found that Winkfield’s complaints were not preserved in the trial court

and were therefore waived, we affirm the judgment of the trial court.



                                           TOM GRAY
                                           Chief Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Affirmed
Opinion delivered and filed September 28, 2011
Do not publish
[CRPM]




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