COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
BRANDON JAY MCDONALD, §
No. 08-13-00209-CR
Appellant, §
Appeal from the
v. §
396th Judicial District Court
THE STATE OF TEXAS, §
of Tarrant County, Texas
Appellee. §
(TC# 1184931W)
§
OPINION
Brandon Jay McDonald appeals his conviction for burglary of a habitation following the
trial court’s revocation of probation. In his sole appellate issue, McDonald contends that his ten-
year sentence, which fell within the statutory range set for burglary of a habitation, constituted
cruel and unusual punishment prohibited by the state and federal constitutions. We affirm.
BACKGROUND
On February 1, 2010, Appellant pleaded guilty to burglary of a habitation. The trial court
assessed a $500 fine, deferred adjudication, and placed Appellant on community supervision for
five years. In May 2013, the State filed a petition to proceed to adjudication, alleging that
Appellant violated the terms of his probation. Appellant entered an open plea of true to all the
allegations contained in the petition. Appellant does not dispute that he pled true to the
revocation charges knowingly, voluntarily, and intelligently, and that he was admonished that the
punishment range for burglary of a habitation was between two and twenty years confinement.
The trial court sentenced Appellant to ten years’ in prison. This appeal followed.
DISCUSSION
Appellant concedes that the sentence he received did not constitute an abuse of judicial
discretion under law because it fell within the statutory punishment range set by the Legislature.
Nevertheless, he maintains that the trial court violated his constitutional rights against cruel and
unusual punishment by actually imposing the sentence because the punishment was
disproportionate to the crime, “mitigating factors” existed in the record, and because “Appellant
pled true to the allegations in the motion to adjudicate, therefore[] taking full responsibility to his
actions [sic] while on probation.” Appellant did not explicitly state what those mitigation factors
were.
To challenge a sentence as cruel and unusual punishment, the defendant must object in
the trial court or else his constitutional claim is waived. Harrington v. State, No. 08-13-00224-
CR, 2014 WL 3783960, at *1-*2 (Tex.App.--El Paso July 31, 2014, no pet.)(not designated for
publication)(objection at sentencing or in a motion for new trial necessary to preserve cruel and
unusual punishment error). Here, Appellant entered an open plea of true to all the allegations
contained in the motion to revoke, and he failed to object in the trial court or raise a complaint in
a motion for new trial. As such, Appellant failed to preserve any Eighth Amendment claims and
waived his ability to challenge his sentence. Id.
Issue One is overruled. We affirm the trial court’s judgment.
October 31, 2014
YVONNE T. RODRIGUEZ, Justice
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Before McClure, C.J., Rodriguez, J., and Barajas, C.J. (Senior Judge)
Barajas, C.J. (Senior Judge)(Sitting by assignment, not participating)
(Do Not Publish)
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