Smith v. State, 06-99-00058-CR

• Decision Date: 22 November 1999
• Docket Number: No. 06-99-00058-CR,06-99-00058-CR
• Citation: 10 S.W.3d 48
• Parties: (Tex.App.-Texarkana 1999) STEVE ALLEN SMITH, Appellant v. THE STATE OF TEXAS, Appellee Date Submitted:
• Court: Texas Court of Appeals

Page 48

10 S.W.3d 48 (Tex.App.-Texarkana 1999)

STEVE ALLEN SMITH, Appellant v. THE STATE OF TEXAS, Appellee

No. 06-99-00058-CR

In The Court of Appeals Sixth Appellate District of Texas at Texarkana

Date Submitted: November 22, 1999

Date Decided: November 23, 1999

On Appeal from the 124th Judicial District Court Gregg County, Texas Trial Court No. 26,085-B

Before Cornelius, C.J., Grant and Ross, JJ.

O P I N I O N

By Chief Justice CORNELIUS

Steve Smith appeals from his conviction for possession of more than 400 grams of cocaine with intent to deliver. He pleaded guilty without a plea bargain. The court found him guilty and assessed his punishment at twenty-three years' imprisonment.

Smith contends that TEX. HEALTH & SAFETY CODE ANN. 481.112(f) (Vernon Supp. 1999), under which he was convicted and sentenced, is unconstitutional. He contends that it violates U.S. CONST. amend. VIII¹ and TEX. CONST. art. I, 13² because the punishment it authorizes is grossly disproportionate to the crime and as applied to him is inappropriate and therefore constitutes cruel and unusual punishment.

Smith did not preserve this contention for review. To preserve a complaint for appellate review, an appellant must present to the trial court a timely request, objection, or motion, stating the specific grounds for the ruling desired. TEX. R. APP. P. 33.1(a)(1)(A); Rhoades v. State, 934 S.W.2d 113, 119 (Tex. Crim. App. 1996). In the absence of a timely objection or request, the complaint is waived. Jackson v. State, 989 S.W.2d 842, 847 (Tex. App.Texarkana 1999, no pet.). Smith did not raise an objection to the sentence imposed.

Even if Smith had properly preserved error, we find that his punishment is not cruel or unusual within the meaning of the Eighth Amendment to the United States Constitution or Article I, 13 of the Texas Constitution.

Smith argues that a fundamental defect in the state statute is demonstrated because the range of punishment is from fifteen years to life, while in the federal system he could have been sentenced to a maximum of only twenty years' imprisonment for the same offense. Actually, the possible range of punishment under the federal statute for possession with intent to deliver a roughly similar amount of cocaine (500 grams) is five to forty years' imprisonment. 21 U.S.C.A. 841(b)(1)(B) (West 1999). Smith argues that, even for a conviction under this federal statute, his punishment as recommended by the federal sentencing guidelines would be only fifty-one to sixty-three months.

The Texas statute provides a more severe punishment than the federal statute, but that does not necessarily render the punishment assessed either cruel or unusual. It merely means that federal and state legislators have a somewhat different view of the seriousness of the offense. As...