                NOS. 07-10-00408-CR, 07-10-00409-CR, 07-10-00410-CR

                              IN THE COURT OF APPEALS

                        FOR THE SEVENTH DISTRICT OF TEXAS

                                      AT AMARILLO

                                         PANEL A

                                      JULY 29, 2011


                              DERRICK LACY, APPELLANT

                                             v.

                           THE STATE OF TEXAS, APPELLEE


              FROM THE 432ND DISTRICT COURT OF TARRANT COUNTY;

  NO. 1188762D, 1188764D, 1188765D; HONORABLE RUBEN GONZALEZ, JUDGE


Before CAMPBELL and HANCOCK and PIRTLE, JJ.



                                MEMORANDUM OPINION

       Appellant, Derrick Lacy, entered pleas of guilty, and pleas of true to allegations of

prior convictions, without benefit of a plea bargain, to theft of property under the value of

$1,500,1 possession of a controlled substance, oxycodone, of one gram or more but

less than four grams,2 enhanced by allegation of one prior felony conviction,3 and


       1
           See TEX. PENAL CODE ANN. § 31.03(b), (e)(4)(D) (West 2011). (No. 07-10-0408-
CR).
       2
       See TEX. HEALTH & SAFETY CODE ANN. § 481.115(a), (c) (West 2010). (No. 07-
10-0409-CR).
possession of a controlled substance, morphine, of less than one gram.4 After receiving

the pre-sentence investigation (PSI), the trial court assessed appellant’s punishment at

two years in a State Jail Facility on the theft and possession of morphine charges. At

the same time, appellant was assessed a term of confinement of six years in the

Institutional Division of the Texas Department of Criminal Justice on the possession of

oxycodone charge.          All terms of confinement were ordered to run concurrently.

Appellant has perfected his appeal contending that the trial court abused its discretion

by assessing a disproportionate punishment under the Eighth Amendment to the United

States Constitution. We affirm.


                              Factual and Procedural Background


          Appellant does not contest the sufficiency of the evidence to sustain his pleas of

guilty.       Neither does appellant contest the procedural aspects of his plea of guilty

without benefit of a plea bargain. The record reflects that appellant entered his pleas of

guilty to each of the indicted offenses on June 9, 2010. At the conclusion of the pleas,

the trial court ordered a PSI prepared. Subsequently, on the 27 th of August, 2010, the

trial court conducted a punishment hearing. The only evidence received at that hearing

was the PSI. After receiving the PSI, the trial court assessed appellant’s punishment as

set forth above. A motion for new trial was filed by appellant that contained only one

allegation, “[T]hat the verdict is contrary to the law and the evidence which was

presented in these cases.”         Appellant now contends that the punishment set forth

          3
              See TEX. PENAL CODE ANN. § 12.42(a)(3) (West 2011).
          4
              See TEX. HEALTH & SAFETY CODE ANN. § 481.115(a), (b). (No. 07-10-0410-CR).

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violates his due process rights under the United States Constitution. See U.S. CONST.

amend VIII. We disagree and will affirm the trial court’s judgment.


                                  Preservation of Error


      Before we can begin any analysis, we must determine if appellant’s complaint

has been preserved for appellate review. See TEX. R. APP. P. 33.1(a)(1).5 Appellant

couches his argument in terms of a due process violation. However, the Texas Court of

Criminal Appeals has ruled that allegations of due process violations are subject to the

requirement of preservation by an objection or motion filed with the trial court. See

Anderson v. State, 301 S.W.3d 276, 279-80 (Tex.Crim.App. 2009). Our review of the

record reveals that appellant lodged no objection to the trial court’s sentences at the

time of the punishment hearing. Further, the subsequently filed motion for new trial

contains no reference to appellant’s due process argument. A fair reading of the motion

for new trial does not lead us to the conclusion that appellant’s current argument was

apparent from the context of the motion. Rule 33.1(a)(1). Accordingly, appellant’s issue

has not been preserved for review and is therefore waived. Anderson, 301 S.W.3d 279-

80. Appellant’s sole issue is overruled.




      5
         Further reference to the Texas Rules of Appellate Procedure will be by
reference to “Rule ___.”

                                            3
                                   Conclusion


      Having overruled appellant’s only issue, the judgments of the trial court are

affirmed.


                                                  Mackey K. Hancock
                                                       Justice




Do not publish.




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