In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
______________________________
No. 06-08-00016-CR
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FRANKLIN JACKSON, II, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 124th Judicial District Court
Gregg County, Texas
Trial Court No. 33443-B
Before Morriss, C.J., Carter and Moseley, JJ.
Memorandum Opinion by Justice Moseley
MEMORANDUM OPINION
Franklin Jackson, II, has appealed from his plea of "true" to the allegations contained in the
State's motion to revoke his community supervision. Jackson was sentenced by the trial court to
twelve months' confinement.
On appeal, Jackson contends that the court violated the prohibition against cruel and unusual
punishment by disregarding societal norms and sentencing him to incarceration rather than utilizing
other options, citing Kennedy v. Louisiana, ___ U.S. ___, 128 S.Ct. 2641 (2008). He contends this
violates the Eighth Amendment to the United States Constitution and Article I, Section 10 of the
Texas Constitution.
To preserve such complaint for appellate review, Jackson 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,
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523–24 (Tex. App.—Texarkana 2005, no pet.); Delacruz v. State, 167 S.W.3d 904 (Tex.
App.—Texarkana 2005, no pet.)), Jackson's motion for new trial did not contain an allegation that
the sentence was disproportionate to the offense or that it was cruel and unusual. He has not
preserved such an issue for appeal.
Therefore, we affirm the trial court's judgment.
Bailey C. Moseley
Justice
Date Submitted: August 28, 2008
Date Decided: August 29, 2008
Do Not Publish
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