Keith v. State, 09-98-003
| Decision Date | 30 September 1998 |
| Docket Number | No. 09-98-003,09-98-003 |
| Citation | 975 S.W.2d 433 |
| Parties | James Miller KEITH IV, Appellant, v. The STATE of Texas, Appellee. CR. |
| Court | Texas Court of Appeals |
David W. Barlow, Beaumont, for appellant.
Tom Maness, Criminal District Attorney, Wayln G. Thompson, Assistant Criminal District Attorney, Beaumont, for appellee.
Before WALKER, C.J., and BURGESS and STOVER, JJ.
James Miller Keith IV pleaded guilty to the jury, without the benefit of a plea bargain, to escape. The jury found Keith guilty and assessed as punishment confinement for life in the Texas Department of Criminal Justice, Institutional Division. Because the offense occurred while Keith was incarcerated, the judge ordered the sentence be served consecutively to the sentence Keith was serving when he committed the escape. The sole issue presented contends the sentence constitutes cruel and unusual punishment in violation of the Eighth Amendment to the United States Constitution and Article 1.09 of the Texas Code of Criminal Procedure.
Keith concedes the sentence assessed was within the statutory punishment range, but argues it is cruel and unusual as applied to him because the cumulation of sentences occurred by operation of law regardless of the existence of mitigating circumstances.
Keith raised no objection to the imposition of sentence, nor did he raise the claim presented on appeal in a post-verdict motion filed with the trial court. To preserve a complaint for appellate review, a party must present a timely complaint to the trial court, state the specific grounds for the desired ruling, if the specific grounds are not otherwise apparent, and obtain a ruling. TEX.R.APP.P. 33.1(a). Most constitutional errors are waived or forfeited by the failure to make a timely assertion of that right. Hawkins v. State, 964 S.W.2d 767 (Tex.App.--Beaumont 1998, pet. ref'd). We find no complaint in the record regarding the constitutionality of the sentence. Keith contends error was preserved by bringing a complete record to this Court, citing Diaz-Galvan v. State, 942 S.W.2d 185 (Tex. App.--Houston [1st Dist.] 1997, pet. ref'd). Diaz-Galvan does not support Keith's position. That case held the appellant failed to file a complete appellate record under what was then Rule 50(d) of the Texas Rules of Appellate Procedure. The default in this case concerns the unrelated matter of Keith's failure to present his complaint to the trial court. No error is preserved for our review.
Assuming, however, no objection was required to preserve error, we find the sentence does not fall within the Eighth Amendment's prohibition against cruel and unusual punishment. In reviewing the proportionality of a sentence, we consider the gravity of the offense and the harshness of the penalty; if the sentence is grossly disproportional to the crime, we consider the sentences imposed upon other criminals in the same jurisdiction, and the sentences imposed for commission of the same crime in other jurisdictions. See Harmelin v. Michigan, 501 U.S. 957, 111 S.Ct. 2680, 115 L.Ed.2d 836 (1991); Solem v. Helm, 463 U.S. 277, 290, 103 S.Ct. 3001, 3009, 77 L.Ed.2d 637 (1983). 1 Keith received the maximum sentence for the offense, for which the punishment range was enhanced by his status as an...
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...must be cumulated with the sentence he was serving at the time of the commission of the offense. CCP Art. 42.08(b); Keith v. State, 975 S.W.2d 433 (Tex.App.—Beaumont 1998, no pet .); Resanovich v. State, 906 S.W.2d 40 (Tex. Crim. App. 1995). This statute also provides for the cumulation of ......
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Punishment Phase
...must be cumulated with the sentence he was serving at the time of the commission of the offense. CCP Art. 42.08(b); Keith v. State, 975 S.W.2d 433 (Tex.App.—Beaumont 1998, no pet .); Resanovich v. State, 906 S.W.2d 40 (Tex. Crim. App. 1995). This statute also provides for the cumulation of ......
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Punishment Phase
...must be cumulated with the sentence he was serving at the time of the commission of the offense. CCP Art. 42.08(b); Keith v. State, 975 S.W.2d 433 (Tex.App.—Beaumont 1998, no pet .); Resanovich v. State, 906 S.W.2d 40 (Tex. Crim. App. 1995). This statute also provides for the cumulation of ......