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


                  No. 06-15-00004-CR



                LESLIE LEE, Appellant

                           V.

           THE STATE OF TEXAS, Appellee



        On Appeal from the 188th District Court
                Gregg County, Texas
              Trial Court No. 42954-A




      Before Morriss, C.J., Moseley and Burgess, JJ.
       Memorandum Opinion by Justice Moseley
                                       MEMORANDUM OPINION
           After she was caught shoplifting at a Walmart in Gregg County, Texas, Leslie Lee was

indicted for state jail felony theft.1 See TEX. PENAL CODE ANN. § 31.03(e)(4)(D) (West Supp.

2014). Lee entered an open plea of guilty and after a hearing on punishment, the court sentenced

her to six months’ imprisonment.

           On appeal, Lee argues that her sentence violated her Eighth Amendment2 protections,

based upon her allegation that the sentence she received was disproportionate to her crime.

           We overrule Lee’s point of error and affirm the trial court’s judgment because Lee failed

to preserve this issue for our review.

I.         Lee Failed to Preserve her Claim that she Received a Disproportionate Sentence

           In her sole point of error, Lee contends that her sentence violated her Eighth Amendment

protections because the sentence was disproportionate to her crime.

           To preserve a complaint for our review, a party must first present to the trial court a timely

request, objection, or motion stating the specific grounds for the desired ruling if not apparent from

the context. TEX. R. APP. P. 33.1(a)(1). 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).




1
    Lee had two prior misdemeanor convictions for theft, one being in 2006 and another in 2010.

“Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”
2

U.S. CONST. amend. VIII.

                                                           2
         An appellant claiming a disproportionate sentence is not excused from the necessity of

error preservation. See Stewart v. LaGrand, 526 U.S. 115, 119 (1999) (per curiam) (appellant

waived Eighth Amendment complaint); 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).

         We have reviewed the records of the pretrial and plea proceedings and conclude that Lee

made no request, objection, or motion complaining of a disproportionate sentence. Although this

Court has held that a motion for a new trial is an appropriate way to preserve this type of claim for

review and while Lee did, indeed, file a motion for a new trial,3 that motion failed to mention any

purported Eighth Amendment violation or other claim of a disproportionate sentence. 4 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.)).

         Here, Lee failed to raise a disproportionate punishment complaint when the trial court

imposed Lee’s sentence, in a motion for a new trial, or in any other type of post-verdict motion.



3
 Lee’s motion for a new trial claims that she “would show the Court that both the guilt/innocence verdict and the
punishment verdict are contrary to the law and the evidence on [sic] the case.”
4
 The Texas Constitution also prohibits the imposition of a disproportionate sentence in saying, “Excessive bail shall
not be required, nor excessive fines imposed, nor cruel or unusual punishment inflicted. All courts shall be open, and
every person for an injury done him, in his lands, goods, person or reputation, shall have remedy by due course of
law.” TEX. CONST. art. I, § 13.
                                                          3
Accordingly, Lee has forfeited her complaint that her sentence is disproportionate. See Kim v.

State, 283 S.W.3d 473, 475 (Tex. App.—Fort Worth 2009 pet. ref’d). 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, we overrule Lee’s sole

point or error.

        We affirm the judgment of the trial court.




                                             Bailey C. Moseley
                                             Justice

Date Submitted:        August 13, 2015
Date Decided:          September 1, 2015

Do Not Publish




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