In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
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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, 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
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give such notice, the motion does not trigger the duty unless the trial court orders the State to give such notice. Henderson v. State, 29 S.W.3d at 625.
The motion here was a general motion for discovery, and it did not ask either the State to give notice of intent to introduce extraneous offense evidence, or ask the trial court to order the State to do so. See id. at 616; Webber v. State, 21 S.W.3d at 730-31; President v. State, 926 S.W.2d at 808.
Because Ford did not make a proper request for notice as required by Texas Code of Criminal Procedure Article 37.07, Section 3(g), the State was not obligated to give notice, and the trial court did not abuse its discretion in allowing evidence of the extraneous acts and offenses.
We affirm the judgment of the trial court.
William J. Cornelius*
Justice
*Chief Justice, Retired, Sitting by Assignment
Date Submitted : December 9, 2002
Date Decided: April 25, 2003
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