COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 02-12-00625-CR

JASON JOSEPH MCDOWELL APPELLANT

V.

THE STATE OF TEXAS STATE

------------

FROM CRIMINAL DISTRICT COURT NO. 1 OF TARRANT COUNTY

------------

MEMORANDUM OPINION1

------------

I. Introduction

In a single point, Appellant Jason Joseph McDowell complains about the 

punishment assessed by the trial court for his conviction of driving while 

intoxicated (DWI) with two prior DWI convictions. We affirm.

 

1See Tex. R. App. P. 47.4.
2

II. Factual and Procedural Background

In 2005, McDowell pleaded guilty pursuant to a plea bargain to DWI-felony 

repetition, a third degree felony, in exchange for a suspended ten-year sentence, 

ten years of community supervision, a $1,500 fine that was not suspended, and 

other conditions imposed by the court.

Around seven years later, the State petitioned to revoke McDowell’s 

suspended sentence, alleging that McDowell had violated the terms and 

conditions of his community supervision by stealing property on or around July 

30, 2012; consuming alcohol on or about May 11, 2012, and July 28, 2010; and 

by sporadically failing to pay his supervision fees and complete his monthly 

community service restitution between October 2009 and July 2012. McDowell 

pleaded true to all of the State’s allegations at the revocation hearing.

McDowell, his mother, and his clinical psychologist all testified that instead 

of jail, McDowell needed additional treatment for his anxiety disorders, which 

included post-traumatic stress disorder (PTSD), chronic panic disorder with 

agoraphobia, polysubstance dependence, multiple head injuries with loss of 

consciousness, and others, primarily resulting from ongoing physical and mental 

abuse from his father when McDowell was a child. McDowell apologized for the 

time and trouble he had caused his family, the adult probation department, and 

the court. During his cross-examination by the State, McDowell agreed that he 

had had multiple chances to succeed on probation and had committed the theft 
3

not long after he had completed in-patient substance abuse treatment and while 

he was participating in aftercare treatment.

Rodney Knotts, McDowell’s probation officer, testified that McDowell had 

been through all of the standard DWI programs, “life supportive outpatient 

counseling, the victim impact panel, repeat offender program,” and most recently, 

a thirty-day inpatient rehabilitation center for substance abuse in Florida. Knotts 

stated he knew about McDowell’s PTSD and other diagnoses but that McDowell 

was not on the MHMR caseload. Knotts testified that it had been brought to the 

trial court’s attention when McDowell was placed on probation that he had some 

anxiety issues but that he was seeing a psychiatrist, was “on meds,” was stable, 

and had appeared to be stable throughout his probation.

In closing arguments, McDowell’s counsel asked the trial court to consider 

“some other option one last time other than incarceration.” The prosecutor 

pointed out that McDowell had already had multiple chances to succeed on 

probation and had been given different avenues of treatment and that “there was 

no indication to probation that he was having any issues with this until recently 

when he was facing revocation.” The trial court sentenced McDowell to ten 

years’ confinement, as set out in his original sentence. This appeal followed.

III. Preservation of Error

In his sole point, McDowell argues that his punishment “was grossly 

disproportionate to the facts of the probationary violations[,] contravening the 

constitutional prohibition against cruel and unusual punishment.” However, to 
4

preserve a complaint for our review, a party must have presented to the trial 

court a timely request, objection, or motion that states the specific grounds for 

the desired ruling if they are not apparent from the context of the request, 

objection, or motion. Tex. R. App. P. 33.1(a)(1); Clark v. State, 365 S.W.3d 333, 

339 (Tex. Crim. App. 2012); Clay v. State, 361 S.W.3d 762, 765 (Tex. App.—Fort 

Worth 2012, no pet.). Further, the trial court must have ruled on the request, 

objection, or motion, either expressly or implicitly, or the complaining party must 

have objected to the trial court’s refusal to rule. Tex. R. App. P. 33.1(a)(2); Pena 

v. State, 353 S.W.3d 797, 807 (Tex. Crim. App. 2011). A reviewing court should 

not address the merits of an issue that has not been preserved for appeal. 

Wilson v. State, 311 S.W.3d 452, 473 (Tex. Crim. App. 2010) (op. on reh’g); 

Clay, 361 S.W.3d at 765. And generally, an appellant may not complain about 

his sentence for the first time on appeal. Curry v. State, 910 S.W.2d 490, 497

(Tex. Crim. App. 1995); Mercado v. State, 718 S.W.2d 291, 296 (Tex. Crim. App. 

1986); Means v. State, 347 S.W.3d 873, 874 (Tex. App.—Fort Worth 2011, no 

pet.) (“Because Appellant did not object to his sentences when they were 

imposed or present his motions for new trial to the trial court, he failed to 

preserve his sentencing complaints for appellate review.”); Laboriel-Guity v. 

State, 336 S.W.3d 754, 756 (Tex. App.—Fort Worth 2011, pet. ref’d).
5

McDowell did not object to his sentence at the hearing, although he had 

the opportunity to do so,2and his motion for new trial did not contain any 

complaint about his sentence. Therefore, McDowell has failed to preserve this 

complaint for review. See Means, 347 S.W.3d at 874; Kim v. State, 283 S.W.3d 

473, 475 (Tex. App.—Fort Worth 2009, pet. ref’d); see also Tex. Penal Code 

Ann. § 12.34(a) (West 2011) (stating that the punishment range for an individual 

adjudged guilty of a third-degree felony is imprisonment for any term of not more 

than ten years or less than two years); Sample v. State, 405 S.W.3d 295, 304–05 

(Tex. App.—Fort Worth 2013, pet. ref’d) (stating that even if the court reached 

merits of unpreserved sentencing complaint, sentence was well within the 

statutory punishment range). We overrule his sole point.

IV. Conclusion

Having overruled McDowell’s sole point, we affirm the trial court’s 

judgment.

/s/ Bob McCoy

BOB MCCOY

JUSTICE

 

2At the conclusion of the hearing, after pronouncement of McDowell’s 

sentence, the trial court asked McDowell whether he had any questions, and 

McDowell said, “No, ma’am.” And in his motion for new trial, which was not 

presented to the trial court, see Tex. R. App. P. 21.6, McDowell did not raise any 

specific complaints about his punishment. See Washington v. State, 271 S.W.3d 

755, 756 (Tex. App.—Fort Worth 2008, pet. ref’d) (holding complaint about 

alleged disproportionate sentence was not preserved when appellant failed to 

present his motion for new trial); see also Means, 347 S.W.3d at 874.
6

PANEL: LIVINGSTON, C.J.; DAUPHINOT and MCCOY, JJ.

DO NOT PUBLISH

Tex. R. App. P. 47.2(b)

DELIVERED: February 27, 2014