                           COURT OF APPEALS
                            SECOND DISTRICT OF TEXAS
                                 FORT WORTH


                                  NOS. 2-09-306-CR
                                       2-09-307-CR
                                       2-09-308-CR
                                       2-09-309-CR

KYSERIUS R. TIMMS                                                          APPELLANT

                                            V.

THE STATE OF TEXAS                                                                STATE

                                        ------------

         FROM THE 371ST DISTRICT COURT OF TARRANT COUNTY

                                        ------------

                                      OPINION

                                        ------------

      Appellant Kyserius R. Timms appeals from four separate, concurrent

sentences of twelve months’ confinement. In each case, the trial court adjudicated

appellant guilty of burglary of a building based on (1) his plea of true to the allegation

that he violated his deferred adjudication community supervision by committing the

new offense of theft and (2) the trial court’s finding that he failed to participate fully

in theft intervention classes that were a condition of his community supervision.

Appellant brings a single issue contending that his sentences are excessive and
disproportionate. Because appellant did not make this complaint in the trial court, 1

he has failed to preserve it for our review. See Tex. R. App. P. 33.1(a)(1); 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.”); Thompson v. State,

243 S.W .3d 774, 775–76 (Tex. App.—Fort W orth 2008, pet. ref’d). Accordingly, we

overrule his sole issue and affirm the trial court’s judgments.




                                               TERRIE LIVINGSTON
                                               JUSTICE

PANEL: LIVINGSTON, DAUPHINOT, and GARDNER, JJ.

DAUPHINOT, J. filed a concurring opinion.

PUBLISH

DELIVERED: April 15, 2010




      1
         Although appellant filed a pro se brief asking for a new trial, he did not
raise the issue he brings on appeal. See Heidelberg v. State, 144 S.W .3d 535, 537
(Tex. Crim. App. 2004); Vafaiyan v. State, 279 S.W .3d 374, 383 (Tex. App.—Fort
W orth 2008, pet. ref’d).

                                           2
                          COURT OF APPEALS
                           SECOND DISTRICT OF TEXAS
                                FORT WORTH


                                 NOS. 2-09-306-CR
                                      2-09-307-CR
                                      2-09-308-CR
                                      2-09-309-CR

KYSERIUS R. TIMMS                                                          APPELLANT

                                            V.

THE STATE OF TEXAS                                                              STATE

                                        ------------

          FROM THE 371ST DISTRICT COURT OF TARRANT COUNTY

                                        ------------

                          CONCURRING OPINION

                                        ------------

      Based on the bulk of the reasoning expressed in Ray v. State, 1 I would

address    Appellant’s   sole   issue    that    his   sentences   are   excessive   and

disproportionate. Appellant’s sentences are well within the range of punishment for



      1
        119 S.W .3d 454, 458–59 (Tex. App.—Fort W orth 2003, pet. ref’d). I
recognize that the Texas Court of Criminal Appeals has held that the issue of a void
statute can no longer be raised for the first time on appeal. Karenev v. State, 281
S.W .3d 428, 434 (Tex. Crim. App. 2009). I therefore do not rely on that statement
in Ray that “the unconstitutionality of a statute may be raised for the first time on
appeal.” Ray, 119 S.W .3d at 458.
these state jail felony offenses. 2 Further, Appellant has presented nothing to show

comparative sentences for burglary of a building offenses or to show why his

sentences are disproportionate to the sentences of others convicted of the same or

similar offenses.3 Appellant contends that the trial court found little or nothing

mitigating in the evidence he introduced at the hearing, but the sentences of only

twelve months would seem to belie this contention.

      Based on all the evidence, I cannot conclude that Appellant’s sentences are

disproportionate or that they amount to cruel and unusual punishment. I would

therefore overrule his sole issue on the merits and affirm the trial court’s judgments.



                                                     LEE ANN DAUPHINOT
                                                     JUSTICE

PUBLISH

DELIVERED: April 15, 2010




      2
         See Tex. Penal Code Ann. § 12.35(a)(b) (Vernon Supp. 2009) (providing
that range of punishment for state jail felonies is 180 days to two years’ confinement
as well as a fine of up to $10,000).
      3
         See Moore v. State, 54 S.W .3d 529, 541–42 (Tex. App.—Fort W orth 2001,
pet. ref’d).

                                          2
