Opinion
No. 06-06-00239-CR
Date Submitted: October 16, 2007.
Date Decided: October 17, 2007. DO NOT PUBLISH.
On Appeal from the Eighth Judicial District Court, Hopkins County, Texas Trial Court No. 0518088.
Before MORRISS, C.J., CARTER and MOSELEY, JJ.
MEMORANDUM OPINION
Bruce Wayne Wood has appealed the revocation of his community supervision for the underlying offense of burglary of a habitation. See Tex. Penal Code Ann. § 30.02(c)(2) (Vernon 2003). Wood pled "not true" to the allegation that he violated condition K of his community supervision order (to report all arrests) and "true" to the allegation that he violated condition L of the order (to perform 240 hours of community service work at the rate of sixteen hours per month). The trial court found both allegations true, revoked Wood's community supervision, and sentenced him to ten years' imprisonment and to pay costs. On appeal, Wood contends that the trial court's sentence should be set aside and remanded for a new trial on punishment due to factual insufficiency of the evidence to support the sentence, citing only Alexander v. State, 866 S.W.2d 1, 9 (Tex.Crim.App. 1993). However, in Alexander (a death penalty case), the appellant was attacking the sufficiency of the evidence to support the jury's answers to the additional affirmative issues that support a sentence of death. That analysis does not apply to this situation. In this case, the punishment assessed by the trial court was within the statutorily prescribed range of punishment; therefore, Wood's argument could only be based on whether the trial court exercised its discretion unreasonably or unfairly in assessing punishment, causing the decision to be unconstitutional and the sentence imposed disproportionate to his crime. To preserve such a disproportionate sentencing complaint for appellate review, Wood 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.), Wood did not preserve this complaint in his motion for new trial. Wood has not preserved such an issue for appeal. Therefore, we affirm the trial court's judgment.