In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
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No. 06-08-00017-CR
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PATRICK LEE WALKER, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 124th Judicial District Court
Gregg County, Texas
Trial Court No. 34851-B
Before Morriss, C.J., Carter and Moseley, JJ.
Memorandum Opinion by Justice Carter
MEMORANDUM OPINION
Patrick Lee Walker has appealed from his open plea of guilty to the offense of theft over $1,500.00. He was sentenced by the trial court to one year's confinement.
On appeal, Walker contends that his sentence is disproportionate to the crime and violates societal norms, thus violating the Eighth Amendment, citing Kennedy v. Louisiana, ___ U.S. ___, 128 S. Ct. 2641 (2008). To preserve such complaint for appellate review, Walker must have presented to the trial court a timely request, objection, or motion that stated the specific grounds for the desired ruling, or the complaint must be apparent from the context. See Tex. R. App. P. 33.1(a)(1); Harrison v. State, 187 S.W.3d 429, 433 (Tex. Crim. App. 2005); Williams v. State, 191 S.W.3d 242, 262 (Tex. App.--Austin 2006, no pet.) (claims of cruel and unusual punishment must be presented in timely manner); Nicholas v. State, 56 S.W.3d 760, 768 (Tex. App.--Houston [14th Dist.] 2001, pet. ref'd) (failure to complain to trial court that sentences were cruel and unusual waived claim of error for appellate review). We have reviewed the record of the trial proceeding. No relevant request, objection, or motion was made. And, while this Court has held that a motion for new trial is an appropriate way to preserve this type of claim for review (see Williamson v. State, 175 S.W.3d 522, 523-24 (Tex. App.--Texarkana 2005, no pet.); Delacruz v. State, 167 S.W.3d 904 (Tex. App.--Texarkana 2005, no pet.)), Walker's motion for new trial did not contain an allegation that the sentence was disproportionate to the offense. He has not preserved such an issue for appeal.
Therefore, we affirm the trial court's judgment.
Jack Carter
Justice
Date Submitted: August 28, 2008
Date Decided: August 29, 2008
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e. Sanders replied, "Tell them Joe was driving," apparently referring to the acquaintance with whom he had come to the parlor on their first visit several hours earlier. During closing argument, the prosecutor pointed out that the defense could have subpoenaed Joe to testify if in fact he had been the one driving, and the defense had failed to do so. Sanders objected that this argument "goes to the burden of proof" of which the defense has none, and the trial court overruled the objection. This was not improper argument.
Counsel are permitted to argue logical inferences that arise from a party's failure to produce evidence that is shown to exist. See 43 George E. Dix & Robert O. Dawson, Texas Practice: Criminal Practice and Procedure § 37.23 at 617 (2d ed. 2001). Such argument is permissible if it does not invite the jury to speculate why the defendant failed to testify. See id. The evidence introduced here suggested that Sanders' excuse to the parlor owner and to the officers was that another person was driving. It was thus permissible for the prosecutor to argue that if this excuse were true, the defense would have called the person who could verify that excuse. These remarks neither shifted the burden of proof nor commented on Sanders' failure to testify.
We note that the result would be different if the prosecutor had made a comment that called for the denial of an assertion of fact or contradictory evidence that only Sanders was personally able to offer. See Nowlin v. State, 507 S.W.2d 534, 536 (Tex. Crim. App. 1974). In our case, however, the language used clearly referred to the defense's failure to produce testimony other than from Sanders personally. Such argument is not improper. Id. at 536. The objection was properly overruled and the judgment is affirmed.
William J. Cornelius
Chief Justice
Date Submitted: April 11, 2002
Date Decided: April 18, 2002
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