                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH


                                NO. 2-08-406-CR


EDWIN WOO JIN KIM                                                     APPELLANT

                                        V.

THE STATE OF TEXAS                                                         STATE

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

        FROM THE 396TH DISTRICT COURT OF TARRANT COUNTY

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

                                   OPINION

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

                                 I. Introduction

      In two issues, Appellant Edwin Woo Jin Kim appeals his conviction for

burglary of a habitation. We affirm.

                       II. Factual and Procedural History

      This is the oft-told tale of buyer’s remorse. On February 4, 2005, Kim

pleaded guilty to the offense of burglary of a habitation. The trial court deferred

adjudicating Kim’s guilt and placed him on deferred adjudication community
supervision for six years. On March 17, 2006, the State filed its first motion

to proceed to adjudication, alleging that Kim had failed to submit a urine sample

as ordered for drug testing, report to his probation officer, and pay court costs

and probation fees. A month later, the trial court modified Kim’s community

supervision and ordered him to participate in a substance abuse felony program.

      On August 23, 2007, the State filed a second petition to adjudicate Kim’s

guilt, alleging that Kim had failed six drug tests, had failed to pay court costs

and probation fees, and had failed to attend Alcoholics Anonymous meetings

and counseling sessions.    Again, the trial court modified Kim’s community

supervision and gave Kim another opportunity to avoid adjudication and possible

incarceration.

      Nevertheless, on August 8, 2008, the State filed a third petition to

adjudicate Kim’s guilt, alleging that Kim again had failed to submit to urine

testing for controlled substances, report to his probation officer, and pay court

costs, probation fees, and lab fees. The State offered a three-year sentence in

exchange for a plea of true.     Kim rejected the State’s offer and, instead,

entered an open plea to the trial court.1 Kim answered true to all of the State’s

allegations, and he asked the court to allow him to remain on community



      1
      … Kim testified that he understood that the trial court could assess
punishment anywhere within the punishment range of the offense.

                                       2
supervision and to attend Cenikor for drug rehab. The trial judge adjudicated

Kim guilty of the burglary offense and sentenced Kim to seven years’

confinement.2   Kim made no objections to the sentence and did not file a

motion for new trial. This appeal followed.

 III. Disproportionate Punishment and Abuse of Discretion Issues Forfeited

      In two issues, Kim asserts that the trial court abused its discretion by

setting punishment at seven years’ confinement, more than twice as long as

the sentence offered by the State, and also argues that the seven-year sentence

is disproportionate punishment.

      It is axiomatic that errors that are asserted on the part of the trial court

must generally be brought to the trial court’s attention in order to afford the

trial court an opportunity to correct the error, if any. To preserve for appellate

review a complaint that a sentence is grossly disproportionate, constituting

cruel and unusual punishment, a defendant must present to the trial court a

timely request, objection, or motion stating the specific grounds for the ruling

desired. Tex. R. App. P. 33.1(a); Rhoades v. State, 934 S.W.2d 113, 120

(Tex. Crim. App. 1996) (holding complaint of cruel and unusual punishment




      2
       … The punishment range for burglary of a habitation, a second degree
felony, is two to twenty years’ confinement.        See Tex. Penal Code
Ann. §§ 12.33(a), 30.02(c)(2) (Vernon 2003).

                                        3
under Texas Constitution was waived because defendant presented his

argument for first time on appeal); Noland v. State, 264 S.W.3d 144, 151–52

(Tex. App.—Houston [1st Dist.] 2007, pet. ref’d) (holding that when appellant

failed to object to his sentence at the punishment hearing or to complain about

it in his motion for new trial, he failed to preserve his Eighth Amendment

complaint that the punishment assessed was “grossly disproportionate and

oppressive”); Wynn v. State, 219 S.W.3d 54, 61 (Tex. App.—Houston [1st

Dist.] 2006, no pet.) (holding that defendant’s failure to object to his life

sentence of imprisonment as cruel and unusual punishment waived error); see

also Mercado v. State, 718 S.W.2d 291, 296 (Tex. Crim. App. 1986) (stating

that, as a general rule, appellant may not assert error pertaining to his sentence

or punishment when he failed to object or otherwise raise such error in the trial

court).

      Kim’s complaint about the alleged disproportionality of his sentence was

not raised at the time it was imposed or in a motion for new trial. Therefore,

he preserved nothing for our review. See Noland, 264 S.W.3d at 151–52;

Acosta v. State, 160 S.W.3d 204, 211 (Tex. App.—Fort Worth 2005, no pet.)

(holding that defendant forfeited his Texas constitution-based complaint that his

sentence was grossly disproportionate); see also Cisneros v. State, No. 02-06-

00103-CR, 2007 WL 80002, at *1 (Tex. App.—Fort Worth Jan. 11, 2007, pet.

                                        4
ref’d) (mem. op., not designated for publication) (collecting cases). We overrule

both of Kim’s issues.

      Further, even if we were to reach the merits of Kim’s complaint, Kim

recognizes in his briefing that punishment imposed within the statutory limits,

as here, is generally not subject to challenge for excessiveness. See Dale v.

State, 170 S.W.3d 797, 799 (Tex. App.—Fort Worth 2005, no pet.). Subject

only to a very limited, “exceedingly rare,” and somewhat amorphous Eighth

Amendment gross-disproportionality review, a punishment that falls within the

legislatively prescribed range, and that is based upon the sentencer’s informed

normative judgment, is unassailable on appeal.      See Ex parte Chavez, 213

S.W.3d 320, 323–24 (Tex. Crim. App. 2006).

                                IV. Conclusion

      Having overruled Kim’s issues, we affirm the trial court’s judgment.




                                           BOB MCCOY
                                           JUSTICE

PANEL: LIVINGSTON, DAUPHINOT, and MCCOY, JJ.

DAUPHINOT, J. filed a concurring and dissenting opinion.

PUBLISH

DELIVERED: March 26, 2009



                                       5
                          COURT OF APPEALS
                           SECOND DISTRICT OF TEXAS
                                FORT WORTH


                                 NO. 2-08-406-CR


EDWIN WOO JIN KIM                                                 APPELLANT

                                        V.

THE STATE OF TEXAS                                                      STATE

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

           FROM THE 396TH DISTRICT COURT OF TARRANT COUNTY

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

                 CONCURRING AND DISSENTING OPINION

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

      Although I agree with the outcome in this case, I cannot agree with the

majority’s holding that Appellant forfeited his complaint.

      The majority states that a defendant must complain about the alleged

disproportionality of his sentence at the time it is imposed or in a motion for

new trial; otherwise, the majority contends, the complaint is not preserved. 1




      1
          … Majority op. at 4.
I do not understand when exactly a defendant is supposed to lodge this

complaint and what relief he is supposed to seek below.

      The majority relies on six cases in support of its position, none of which

addresses my concerns.         In Rhoades v. State, a Texas Court of Criminal

Appeals plurality focuses on Rhoades’s complaint about the constitutionality of

a   statute    governing   a   jury   instruction,   not   a   complaint   about   the

constitutionality of his sentence. 2 Mercado v. State, another Texas Court of

Criminal Appeals opinion, deals not with a cruel and unusual claim but with a

complaint that the procedure used by the trial court was vindictive. 3 The Court

states, “[Mercado] did not just fail to object but rather expressly acquiesced in

the procedure used. We believe that he should not now be heard to complain

that the procedure was vindictive.” 4          Does the majority here contend that

Appellant somehow expressly acquiesced in the trial court’s sentencing

decision? In Noland v. State and Wynn v. State, our sister court in the First

District of Houston holds, as does the majority here, that the defendant

forfeited his Eighth Amendment complaint by not objecting after he was




      2
          … Rhoades v. State, 934 S.W.2d 113, 120 (Tex. Crim. App. 1996).
      3
          … Mercado v. State, 718 S.W.2d 291, 296 (Tex. Crim. App. 1986).
      4
          … Id. (emphasis added).

                                           2
sentenced.5 In Cisneros v. State, an unpublished case, and Acosta v. State,

this court also find forfeiture.6 Neither the Houston court nor this court explains

how a defendant can object after the trial is over, but each claims that

defendants should raise the complaint in a motion for new trial. Neither court

explains how a defendant can get a hearing on the motion in order to provide

the record necessary for addressing the merits of the complaint.

      In a criminal case, pronouncing sentence in open court in the presence of

the defendant ends the trial; that act triggers the running of the appellate

timetable.7   Unlike a civil case, in which there is usually a delay between

pronouncing the verdict in open court and signing the judgment, there is no lag

time in a criminal case between the pronouncement of sentence and its

execution. Once a defendant begins serving the sentence, it is too late to

change it.    Although there has been some suggestion that a judge may




      5
       … Noland v. State, 264 S.W.3d 144, 152 (Tex. App.—Houston [1st
Dist.] 2007, pet. ref’d); Wynn v. State, 219 S.W.3d 54, 61 (Tex.
App.—Houston [1st Dist.] 2006, no pet.).
      6
       … Acosta v. State, 160 S.W.3d 204, 211 (Tex. App.—Fort Worth 2005,
no pet.); Cisneros v. State, No. 02-06-00103-CR, 2007 WL 80002, at *1 (Tex.
App.—Fort Worth Jan. 11, 2007, pet. ref’d) (mem. op., not designated for
publication).
      7
       … Pruitt v. State, 737 S.W.2d 622, 623 (Tex. App.—Fort Worth 1987,
pet. ref’d); see also Tex. R. App. P. 26.2.

                                        3
immediately change the sentence, 8 there is no provision in the code of criminal

procedure for offering evidence of disproportionality after sentencing, as the

admission of additional evidence after pronouncement would effectively create

a second punishment phase. And a defendant cannot object in advance that

a sentence is disproportionate because until the sentence is pronounced, the

defendant does not know that it will be objectionable.

      Does the majority contend that a defendant must ask for re-sentencing?

How? There is no judgment notwithstanding the verdict (JNOV) in a criminal

case.9 I know of no provision in the rules of appellate procedure or the code of

criminal procedure that permits an oral motion for new trial, and it would

probably be malpractice to lodge one on the sentencing issue at trial and forego

raising other issues later in a traditional motion for new trial.

      While a party in a civil case must file a motion for new trial in order to

lodge a factual sufficiency issue on appeal of a jury verdict, 10 in criminal cases

the motion for new trial is expressly not a prerequisite to raising the complaint




      8
          … See State v. Aguilera, 165 S.W.3d 695, 698 (Tex. Crim. App. 2005).
      9
       … State v. Savage, 933 S.W.2d 497, 499 (Tex. Crim. App. 1996)
(holding trial court hearing criminal case lacks authority to grant JNOV); see
Tex. Code Crim. Proc. Ann. art. 42.01, § 1(7) (Vernon 2006).
      10
           … Tex. R. Civ. P. 324(b)(2), (3).

                                          4
on appeal; rather, it is merely a vehicle to provide an adequate record in support

of that claim.11

      The problem a defendant faces in raising a proportionality claim under the

Eighth Amendment is one of providing a sufficient record of disproportionality.

Such claim should not be dismissed out of hand for failure to raise it in the trial

court anymore than an ineffective assistance of counsel claim should be held

forfeited by not raising it at trial or in a motion for new trial.      The Eighth

Amendment claim is not forfeited; the defendant has not presented an adequate

record for the claim to be reviewed on the merits.

      By     holding   that Appellant has    forfeited   his   Eighth   Amendment

proportionality complaint, the majority creates law that impacts death penalty

defendants.      Disproportionality is often raised in an application for habeas

corpus relief because the record is insufficient on direct appeal. 12 Normally, as

the majority points out, a complaint not properly raised in the trial court is

forfeited.13 Forfeiture means the complaint may not be raised by writ of habeas




      11
           … See Tex. R. App. P. 21.2.
      12
       … See generally Rummel v. Estelle, 445 U.S. 263, 100 S. Ct. 1133
(1980); Russell v. Collins, 998 F.2d 1287 (5th Cir. 1993), cert. denied, 510
U.S. 1185 (1994).
      13
           … See majority op. at 4.

                                         5
corpus. 14 The Texas Court of Criminal Appeals has held, however, that this

doctrine should not be applied where direct appeal “cannot be expected to

provide an adequate record to evaluate the claim in question, and the claim

might be substantiated through additional evidence gathering in a habeas

corpus proceeding.” 1 5     That is, a complaint that requires a more complete

record than can reasonably be created at trial is not forfeited if rejected on

appeal but may still be raised via an application for habeas corpus. As the

Texas Court of Criminal Appeals has explained in the ineffective assistance of

counsel context,

      We have expressed two separate rationales that support an
      exception to the general rule of procedural default in the ineffective
      assistance of counsel context. First, we have noted the many
      practical difficulties with requiring an appellant to claim ineffective
      assistance at the time of trial or immediately post-trial. For
      example, in Randle, we rejected the Court of Appeals’ suggestion
      that the appellant’s ineffective assistance claim had been waived
      by a failure to object with sufficient specificity to preserve the
      complaint. We held that the claim had been adequately preserved
      by means of a pre-trial Motion for Protective Order and post-trial
      Motion for New Trial. We then continued:

               Even if appellant and defense counsel had chosen to do
               nothing before or at the time of trial to bring to the trial
               court’s attention the particulars (that underlay
               appellant’s Sixth Amendment claim), there is no reason


      14
        … See Ex parte Torres, 943 S.W.2d 469, 475 (Tex. Crim. App. 1997)
(“Generally, a claim which was previously raised and rejected on direct appeal
is not cognizable on habeas corpus.”).
      15
           … Id.

                                            6
      for appellant to have been required to specifically claim
      ineffective assistance of counsel at the time of trial.
      We do not require any defendant to risk alienating his
      trial lawyer by requiring the defendant to claim
      ineffective assistance of counsel at the time of trial.
      Further, because many errors by defense counsel are
      of a technical nature, the defendant may not even
      know errors by their trial lawyer are occurring, and
      cannot possibly object. Many times it is in the review
      of the record by the appellate attorney that errors of an
      ineffective assistance of counsel nature are discovered.
      The timely filed appeal to the court of appeals by
      appellant is a proper procedure for seeking relief.

Thus, a defendant could not, by inaction at trial, waive the right to
make an ineffective assistance of counsel claim on appeal.

       The second reason we have given for not enforcing a
procedural bar in this context is because there is not generally a
realistic opportunity to adequately develop the record for appeal in
post-trial motions. In this regard, we have noted that a
post-conviction writ proceeding, rather than a motion for new trial,
is the preferred method for gathering the facts necessary to
substantiate such a Sixth Amendment challenge:

      While expansion of the record may be accomplished in
      a motion for new trial, that vehicle is often inadequate
      because of time constraints and because the trial
      record has generally not been transcribed at this point.
      Further, mounting an ineffective assistance attack in a
      motion for new trial is inherently unlikely if the trial
      counsel remains counsel during the time required to file
      such a motion. Hence, in most ineffective assistance
      claims, a writ of habeas corpus is essential to
      gathering the facts necessary to adequately evaluate
      such claims.




                                 7
      Indeed, we have increasingly noted that, in most cases, the pursuit
      of such a claim on direct appeal may be fruitless.16

      Just as a defendant can rarely sustain a complaint of ineffective

assistance of counsel or jury misconduct on direct appeal, a defendant can

rarely sustain a complaint of disproportionality on direct appeal. A defendant

cannot complain about a disproportionate sentence before it is pronounced.

Disproportionality requires a showing beyond a defendant’s not liking the

sentence. It requires evidence of disproportionality. Even a mere objection is

problematic because the trial is over when the sentence is pronounced, so an

objection could be lodged only after the trial has ended.     What would that

proceeding be called? I believe that disproportionality complaints, like those of

ineffective assistance, may be raised in habeas corpus proceedings despite their

rejection in appellate proceedings and that they are therefore not forfeited.

      I would, therefore, omit the forfeiture language and hold, as did the

majority implicitly in the final paragraph of its analysis of Appellant’s

disproportionality complaint, that the record is inadequate to show why

Appellant’s sentence, well within the range of punishment established by the

legislature, is grossly disproportionate and violative of the Eighth Amendment

prohibition.



      16
         … Robinson v. State, 16 S.W.3d 808, 809–11 (Tex. Crim. App. 2000)
(citations omitted).

                                       8
                                LEE ANN DAUPHINOT
                                JUSTICE

PUBLISH

DELIVERED: March 26, 2009




                            9
