

Opinion issued December 3, 2009
 
 
 
 
 
 

 
 
 
 
 
 
 
 
In The
Court of Appeals
For The
First District of Texas
 


















 

NO. 01-09-00221-CR
 





















 

EDDIE D. PAYNE, JR., Appellant
 
V.
 
THE STATE OF TEXAS, Appellee
 
 

On Appeal from the 7th District Court
Smith County, Texas
Trial Court Cause No. 007-0332-08
 
 

MEMORANDUM OPINION
          Appellant, Eddie D. Payne, Jr., pleaded guilty to felony theft and the
trial court assessed punishment at 10 years’ confinement, which it then
suspended, placing appellant on 5 years’ community supervision.  Three months later, the State filed a motion
to revoke appellant’s community supervision. 
After a hearing on the State’s motion, the trial court revoked appellant’s
community supervision and assessed punishment at 8 years’ confinement.  In two related points of error, appellant
contends that his sentence is unconstitutional. 
We affirm.
EXCESSIVE OR DISPROPORTIONATE
SENTENCE
Appellant argues that the trial court
erred in assessing punishment because its sentence is “disproportionate for the
crime committed” and violates the Eighth Amendment of the United States
Constitution[1] and article I, section 13 of the Texas Constitution.[2]  
The Eighth Amendment requires that a
criminal sentence be proportionate to the crime for which a defendant has been
convicted.  Solem v. Helm, 463
U.S. 277, 290, 103 S. Ct. 3001, 3009 (1983) (citing U.S. Const. amend. VIII); see also Baldridge v. State,
77 S.W.3d 890, 893 (Tex. App.—Houston [14th Dist.] 2002, pet. ref’d) (stating
that Eighth Amendment has narrow proportionality principle).  The Texas Constitution prohibits “cruel or
unusual punishment.” Tex. Const.
art. I, § 13.
However, in order 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.  See Tex. R. App. P. 33.1(a); Rhoades v.
State, 934 S.W.2d 113, 119-20 (Tex. Crim. App. 1996). 
Here, after the trial court announced
its sentence at the punishment hearing, appellant made no objection to the
trial court about the punishment assessed and did not assert his claim under
the Eighth Amendment and the Texas Constitution in the trial court.  Accordingly, we hold that appellant has waived
his cruel and unusual punishment
complaints.  See Ladd v. State, 3
S.W.3d 547, 564 (Tex. Crim. App. 1999) (concluding that defendant did not
preserve cruel and unusual
punishment complaint for appellate review).
 
 
 
 
 
We overrule points of error one and
two.
CONCLUSION

We affirm the judgment of the trial
court.
 
 
 
 
                                                          Sherry
Radack
                                                          Chief
Justice
 
Panel consists of Chief Justice Radack
and Justices Bland and Massengale.
Do not publish.  Tex.
R. App. 47.2(b).




[1]               U.S. Const. amend. 8.


[2]               Tex. Const. art. I , §13. 


