                        COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                             NO. 02-12-00625-CR

JASON JOSEPH MCDOWELL                                          APPELLANT

                                          V.

THE STATE OF TEXAS                                                   STATE


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     FROM CRIMINAL DISTRICT COURT NO. 1 OF TARRANT COUNTY

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                       MEMORANDUM OPINION1
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                                   I. Introduction

      In a single point, Appellant Jason Joseph McDowell complains about the

punishment assessed by the trial court for his conviction of driving while

intoxicated (DWI) with two prior DWI convictions. We affirm.




      1
       See Tex. R. App. P. 47.4.
                    II. Factual and Procedural Background

      In 2005, McDowell pleaded guilty pursuant to a plea bargain to DWI-felony

repetition, a third degree felony, in exchange for a suspended ten-year sentence,

ten years of community supervision, a $1,500 fine that was not suspended, and

other conditions imposed by the court.

      Around seven years later, the State petitioned to revoke McDowell’s

suspended sentence, alleging that McDowell had violated the terms and

conditions of his community supervision by stealing property on or around July

30, 2012; consuming alcohol on or about May 11, 2012, and July 28, 2010; and

by sporadically failing to pay his supervision fees and complete his monthly

community service restitution between October 2009 and July 2012. McDowell

pleaded true to all of the State’s allegations at the revocation hearing.

      McDowell, his mother, and his clinical psychologist all testified that instead

of jail, McDowell needed additional treatment for his anxiety disorders, which

included post-traumatic stress disorder (PTSD), chronic panic disorder with

agoraphobia, polysubstance dependence, multiple head injuries with loss of

consciousness, and others, primarily resulting from ongoing physical and mental

abuse from his father when McDowell was a child. McDowell apologized for the

time and trouble he had caused his family, the adult probation department, and

the court. During his cross-examination by the State, McDowell agreed that he

had had multiple chances to succeed on probation and had committed the theft



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not long after he had completed in-patient substance abuse treatment and while

he was participating in aftercare treatment.

      Rodney Knotts, McDowell’s probation officer, testified that McDowell had

been through all of the standard DWI programs, “life supportive outpatient

counseling, the victim impact panel, repeat offender program,” and most recently,

a thirty-day inpatient rehabilitation center for substance abuse in Florida. Knotts

stated he knew about McDowell’s PTSD and other diagnoses but that McDowell

was not on the MHMR caseload. Knotts testified that it had been brought to the

trial court’s attention when McDowell was placed on probation that he had some

anxiety issues but that he was seeing a psychiatrist, was “on meds,” was stable,

and had appeared to be stable throughout his probation.

      In closing arguments, McDowell’s counsel asked the trial court to consider

“some other option one last time other than incarceration.”       The prosecutor

pointed out that McDowell had already had multiple chances to succeed on

probation and had been given different avenues of treatment and that “there was

no indication to probation that he was having any issues with this until recently

when he was facing revocation.”      The trial court sentenced McDowell to ten

years’ confinement, as set out in his original sentence. This appeal followed.

                            III. Preservation of Error

      In his sole point, McDowell argues that his punishment “was grossly

disproportionate to the facts of the probationary violations[,] contravening the

constitutional prohibition against cruel and unusual punishment.” However, to

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preserve a complaint for our review, a party must have presented to the trial

court a timely request, objection, or motion that states the specific grounds for

the desired ruling if they are not apparent from the context of the request,

objection, or motion. Tex. R. App. P. 33.1(a)(1); Clark v. State, 365 S.W.3d 333,

339 (Tex. Crim. App. 2012); Clay v. State, 361 S.W.3d 762, 765 (Tex. App.—Fort

Worth 2012, no pet.). Further, the trial court must have ruled on the request,

objection, or motion, either expressly or implicitly, or the complaining party must

have objected to the trial court’s refusal to rule. Tex. R. App. P. 33.1(a)(2); Pena

v. State, 353 S.W.3d 797, 807 (Tex. Crim. App. 2011). A reviewing court 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);

Clay, 361 S.W.3d at 765. And generally, an appellant may not complain about

his sentence for the first time on appeal. Curry v. State, 910 S.W.2d 490, 497

(Tex. Crim. App. 1995); Mercado v. State, 718 S.W.2d 291, 296 (Tex. Crim. App.

1986); Means v. State, 347 S.W.3d 873, 874 (Tex. App.—Fort Worth 2011, no

pet.) (“Because Appellant did not object to his sentences when they were

imposed or present his motions for new trial to the trial court, he failed to

preserve his sentencing complaints for appellate review.”); Laboriel-Guity v.

State, 336 S.W.3d 754, 756 (Tex. App.—Fort Worth 2011, pet. ref’d).




                                         4
      McDowell did not object to his sentence at the hearing, although he had

the opportunity to do so,2 and his motion for new trial did not contain any

complaint about his sentence. Therefore, McDowell has failed to preserve this

complaint for review. See Means, 347 S.W.3d at 874; Kim v. State, 283 S.W.3d

473, 475 (Tex. App.—Fort Worth 2009, pet. ref’d); see also Tex. Penal Code

Ann. § 12.34(a) (West 2011) (stating that the punishment range for an individual

adjudged guilty of a third-degree felony is imprisonment for any term of not more

than ten years or less than two years); Sample v. State, 405 S.W.3d 295, 304–05

(Tex. App.—Fort Worth 2013, pet. ref’d) (stating that even if the court reached

merits of unpreserved sentencing complaint, sentence was well within the

statutory punishment range). We overrule his sole point.

                                IV. Conclusion

      Having overruled McDowell’s sole point, we affirm the trial court’s

judgment.

                                                  /s/ Bob McCoy

                                                  BOB MCCOY
                                                  JUSTICE


      2
        At the conclusion of the hearing, after pronouncement of McDowell’s
sentence, the trial court asked McDowell whether he had any questions, and
McDowell said, “No, ma’am.” And in his motion for new trial, which was not
presented to the trial court, see Tex. R. App. P. 21.6, McDowell did not raise any
specific complaints about his punishment. See Washington v. State, 271 S.W.3d
755, 756 (Tex. App.—Fort Worth 2008, pet. ref’d) (holding complaint about
alleged disproportionate sentence was not preserved when appellant failed to
present his motion for new trial); see also Means, 347 S.W.3d at 874.

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PANEL: LIVINGSTON, C.J.; DAUPHINOT and MCCOY, JJ.

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

DELIVERED: February 27, 2014




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