Maxie Lynn Buchanan v. State ( 2007 )

In The

Court of Appeals

Ninth District of Texas at Beaumont

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NO. 09-06-365 CR ____________________

MAXIE LYNN BUCHANAN, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the 252nd District Court Jefferson County, Texas Trial Cause No. 89438

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MEMORANDUM OPINION

Maxie Lynn Buchanan appeals the punishment assessed by the trial court following adjudication for the offense of forgery. See Tex. Pen. Code Ann. § 32.21(a)(1)(B), (b) (Vernon Supp. 2006) ⁽¹⁾. The record reflects Buchanan had been placed on community supervision in October of 2003, but had subsequently committed the offense of unauthorized use of a motor vehicle ("UUMV"). At the hearing on the State's motion to adjudicate, Buchanan pled guilty to the UUMV offense, and also pled true to having violated a condition of his forgery community supervision by having committed the UUMV offense. Pursuant to a negotiated punishment recommendation, the trial court found Buchanan guilty of the UUMV offense and sentenced him to fourteen months of confinement in the Texas Department of Criminal Justice, Correctional Institutions Division. After informing Buchanan that the fourteen months for the UUMV offense would run concurrently with the sentence in the forgery, the following colloquy took place between the trial court and the parties:

THE COURT: Cause No. 89438, any evidence that you want to submit for the sentencing portion?

[Trial Counsel]: Your Honor, we had worked out an agreement, as the Court just sentenced Mr. Buchanan, for 14 months state jail. We would ask that the Court revoke Mr. Buchanan's community supervision in this cause number, adjudicate him guilty of forgery and set punishment at 14 months incarceration in the state jail in this case, as well.

THE COURT: Any comments by The [sic] State?

[State]: No, Your Honor. We note this is his first felony with committing a new offense. I don't think he's suitable to remain on probation. In that case The [sic] State would not object if you choose to sentence him to 14 months.

THE COURT: In Cause No. 89438 I find the evidence to be sufficient to find Count 1 to be true. It is, therefore, true. I hereby revoke your unadjudicated probation, now find you guilty of the offense of forgery. You're, therefore, guilty of that offense, assess your punishment at 18 months['] confinement in the state jail. You will receive credit for any and all time that you're entitled to by law. Good luck to you, sir.

The hearing concluded at that point without any further statements or complaints by Buchanan or his counsel. The record does not contain a motion for new trial nor any other post-conviction motion. Buchanan's lone issue on appeal reads: "Whether the punishment was disproportionally high considering the nature of the offenses."

At the outset, we note that the offenses for which Buchanan was convicted, UUMV and forgery, are state jail felonies, both having a punishment range of confinement for any term of not more than two years or less than 180 days, and an optional fine not to exceed $10,000. Tex. Pen. Code Ann. §§ 12.35(a), (b), 31.07(b) (Vernon 2003), 32.21(d) (Vernon Supp. 2006). Thus, the eighteen-month sentence for forgery assessed by the trial court was well within the statutorily prescribed punishment range for the offense. It is generally recognized that a punishment that falls within the legislatively prescribed range "is unassailable on appeal[,]" except for "very limited, 'exceedingly rare,'" and somewhat extreme cases. See Ex parte Chavez, 213 S.W.3d 320, 323-24 (Tex. Crim. App. 2006) (quoting Lockyer v. Andrade, 538 U.S. 63, 72-73, 123 S. Ct. 1166, 155 L. Ed. 2d 144 (2003)). The Chavez Court noted the fact that it has previously described the sentencer's discretion to impose any punishment within the prescribed range to be "essentially 'unfettered.'" Id. at 323 (quoting Miller-El v. State, 782 S.W.2d 892, 895 (Tex. Crim. App. 1990)). Under the record before us, it would appear that Buchanan's contention has no merit as he does not explain how adding a mere four months to the fourteen-month request made by his trial counsel results in a grossly disproportionate sentence.

We do not reach the merits of Buchanan's issue, however, as we find he failed to preserve it for our review. Except under limited circumstances, in order to preserve error for appellate review, a timely and reasonably specific objection, followed by an adverse ruling, is required. Tex. R. App. P. 33.1(a); Mendez v. State, 138 S.W.3d 334, 341 (Tex. Crim. App. 2004); Marin v. State, 851 S.W.2d 275, 278-79 (Tex. Crim. App. 1993). The failure to specifically object to an alleged disproportionate sentence in the trial court or in a post-trial motion waives any error. See Wise v. State, 223 S.W.2d 548, 554 (Tex. App.-- Amarillo 2007, pet. ref'd); Hergert v. State, 197 S.W.3d 394, 399 (Tex. App.--Beaumont 2006, no pet.). A defendant may waive the constitutional right to be free from cruel and unusual punishment. Wise, 223 S.W.3d at 554; Castaneda v. State, 135 S.W.3d 719, 723 (Tex. App.--Dallas 2003, no pet.). As the issue of disproportionality of Buchanan's eighteen-month sentence for forgery is being raised for the first time on appeal, he has forfeited his right to have us consider it, as he did not first bring it to the trial court's attention by way of a timely, specific objection, request, or motion, and secure an adverse ruling as required under Rule 33.1(a). Buchanan's issue is overruled and the judgment of the trial court is affirmed.

AFFIRMED.

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CHARLES KREGER

Justice

Submitted on April 12, 2007

Opinion Delivered July 25, 2007

Do not publish

Before Gaultney, Kreger and Horton, JJ.

1. This citation is to the current version of section 32.21 effective September 1, 2003. We cite the current version for clarity as the amendment has no effect on Buchanan's prosecution or on resolution of the issue presented.