Darion Amos v. State

Opinion issued December 20, 2016.

In The

Court of Appeals

For The

First District of Texas ————————————

NO. 01-15-00980-CR ———————————

DARION AMOS, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 178th District Court Harris County, Texas

Trial Court Case No. 1408362

MEMORANDUM OPINION

Appellant Darion Amos pleaded guilty to aggravated robbery of an individual over sixty-five years of age or disabled,1 and the trial court assessed his punishment at sixteen years’ confinement in the Texas Department of Criminal Justice. In one issue, appellant argues that his sentence is grossly disproportionate to the offense committed and, therefore, it violates the Eighth Amendment of the United States Constitution. See U.S. CONST. amend. VIII.

The Eighth Amendment prohibits cruel and unusual punishment, including “extreme sentences that are ‘grossly disproportionate’ to the crime” committed. Graham v. Florida, 560 U.S. 48, 59–60, 130 S. Ct. 2011, 2021 (2010) (citation omitted). But, the right to be free from cruel and unusual punishment is waivable, and thus, claims of a disproportionate sentence must be preserved for appellate review. TEX. R. APP. P. 33.1(a); Noland v. State, 264 S.W.3d 144, 151 (Tex. App.— Houston [1st Dist.] 2007, pet. ref’d). To preserve a complaint for appellate review, the record must show that the complaint was made to the trial court by a timely request, objection or motion, stating the specific grounds for the ruling desired. See TEX. R. APP. P. 33.1(a)(1). The record does not demonstrate that appellant asserted his grossly disproportionate sentence claim to the trial court during his sentencing hearing, in a post-trial motion, or at any other time. Therefore, we hold that error was not preserved. TEX. R. APP. P. 33.1(a); Noland, 264 S.W.3d at 151.

We overrule appellant’s sole issue.

Conclusion

We affirm the trial court’s judgment.

Russell Lloyd Justice

Panel consists of Justices Bland, Massengale, and Lloyd.

Do not publish. TEX. R. APP. P. 47.2(b).