SAM FELDER JR APPELLANT v. THE STATE OF TEXAS APPELLEE (2017)

MEMORANDUM OPINION

Appellant, Sam Felder, Jr., was convicted of the offense of assault.¹ Through two issues, he contends that the punishment levied violated the Eighth Amendment to the United States Constitution because it was grossly disproportionate to the offense. Due to the nature of the assault (i.e., one involving a dating relationship wherein the appellant impeded the breathing of his victim) and his plea of true to an enhancement paragraph, the range of punishment was that applicable to a felony of the second degree or two to twenty years' imprisonment. The jury assessed a twenty-year prison term, which term was orally pronounced at sentencing by the trial court. Appellant voiced no complaint about his sentence being grossly disproportionate or violative of the Eighth Amendment when pronounced or through a motion for new trial. Instead, the first time he asserted it was on appeal.²

A claim that a sentence is constitutionally infirm because it is grossly disproportionate to the offense must be raised in the trial court to preserve the issue for appellate review. See Oliver v. State, No. 10-06-00152-CR, 2007 Tex. App. LEXIS 6495, at *1–2 (Tex. App.—Waco Aug. 15, 2007, no pet.) (mem. op., not designated for publication) (holding that the right against cruel and unusual punishment is a category three right requiring an objection in the trial court and that Oliver waived his claim of gross disproportionality); accord Prado v. State, No. 07-16-00273-CR, 2016 Tex. App. LEXIS 13109, at *4 (Tex. App.—Amarillo Dec. 8, 2016, no pet.) (mem. op., not designated for publication) (holding the same). Because appellant did not do so, the complaint was waived.

We overrule the issues and affirm the judgment of the trial court.

FOOTNOTES

1.   See TEX. PENAL CODE ANN. § 22.01 (West Supp. 2016).

2.   Because this appeal was transferred from the Tenth Court of Appeals, we are obligated to apply its precedent when available in the event of a conflict between the precedents of that court and this Court. See TEX. R. APP. P. 41.3.

Per Curiam