Opinion issued September 16, 2021

In The

Court of Appeals 

For The 

First District of Texas 

————————————

NO. 01-19-01019-CR

———————————

JONATHON LEE FLEETWOOD, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 182nd District Court

Harris County, Texas

Trial Court Case No. 1602844

MEMORANDUM OPINION

Appellant Jonathon Lee Fleetwood appeals his conviction for the felony 

offense of manslaughter.

1

In a single issue, Fleetwood contends his 12-year sentence 

1 See TEX. PENAL CODE § 19.04. 
2

constitutes cruel and unusual punishment under the Eighth Amendment of the 

United States Constitution.

2 Because we agree with the State that Fleetwood has not 

preserved his Eighth Amendment claim for appellate review, we affirm.

Background

A grand jury indicted Fleetwood for manslaughter, a second-degree felony,

for recklessly causing the death of the complainant, B. McCoy. The indictment was 

enhanced with a paragraph alleging that Fleetwood used or exhibited a deadly 

weapon—a firearm—during the commission of the offense and in immediate flight 

from the offense. 

Fleetwood waived his right to a trial by jury and pleaded “guilty” to 

manslaughter and “true” to the deadly-weapon enhancement paragraph, without an 

agreement with the State as to punishment. Fleetwood requested that the trial court, 

after a presentence investigation, assess punishment, and he applied for community 

supervision. After a Presentence Investigation Report (“PSI”) was prepared, the trial 

court conducted a hearing at which the PSI was admitted into the evidence. In 

addition, the complainant’s mother testified about the emotional impact of the 

complainant’s death, and Fleetwood testified about the commission of the offense.

At the conclusion of the hearing, the trial court announced Fleetwood’s sentence of 

12 years’ confinement. After the trial court announced his sentence, Fleetwood made 

2 See U.S. CONST. amend. VIII.
3

no objection to the punishment assessed, nor did he file a motion for new trial 

objecting to the punishment.

Fleetwood appealed, arguing that the 12-year sentence violated the Eighth 

Amendment’s prohibition against cruel and unusual punishments. The State

responded that the appeal should be dismissed because the plea documentation and 

the trial court’s judgment recited that Fleetwood had waived his right of appeal. This 

Court abated the appeal and remanded the case to the trial court for a hearing to 

determine Fleetwood’s right of appeal. 

The trial court conducted a hearing at which the parties agreed Fleetwood had 

not waived his right of appeal. During this hearing Fleetwood objected for the first 

time to his 12-year sentence. His counsel stated that he “wanted to state [his] 

objections to the sentence of 12 years . . . issued in this particular case . . . and have 

that noted for the record that [he] does object to the [c]ourt’s sentencing[.]” The trial 

court acknowledged the objection but did not rule on it, explaining: “[T]his 

[abatement] hearing was to resolve a specific issue. And we are all in agreement that 

[Fleetwood] does have the right of appeal.” Upon receipt of the trial court’s 

certification of Fleetwood’s right of appeal, this Court reinstated his appeal.
4

Preservation of Eighth Amendment Complaint

Fleetwood contends the trial court’s 12-year sentence, although within the 

punishment range provided for this offense,3 violates the prohibition against cruel 

and unusual punishments in the Eighth Amendment. See U.S. CONST. amend. VIII

(“Excessive bail shall not be required, nor excessive fines imposed, nor cruel and 

unusual punishments inflicted.”). Although Fleetwood acknowledges that Texas 

courts have held that a sentence assessed within the punishment range prescribed by 

the Legislature is not excessive, cruel, or unusual, he points out that a narrow 

exception to this rule exists when the sentence assessed is grossly disproportionate 

to the crime. See Solem v. Helm, 463 U.S. 277, 288 (1983); see also Noland v. State, 

264 S.W.3d 144, 151 (Tex. App.—Houston [1st Dist.] 2007, pet. ref’d) (instructing 

that Eighth Amendment “requires that a criminal sentence be proportionate to the 

crime for which a defendant has been convicted”). The State responds that 

Fleetwood did not preserve his Eighth Amendment complaint for appellate review

because he did not make a timely or specific objection in the trial court. We agree.

“[I]n order to preserve for appellate review a complaint that a sentence is 

grossly disproportionate, constituting cruel and unusual punishment, a defendant 

3 Manslaughter is a second-degree felony. TEX. PENAL CODE § 19.04(b). “An 

individual adjudged guilty of a felony of the second degree shall be punished by 

imprisonment in the Texas Department of Criminal Justice for any term of not more 

than 20 years or less than 2 years,” and “may be punished by a fine not to exceed 

$10,000.” Id. § 12.33.
5

must present to the trial court a timely request, objection, or motion stating the 

specific grounds for the ruling desired.” Noland, 264 S.W.3d at 151 (citing TEX. R.

APP. P. 33.1(a)); see also Cantley v. State, No. 01-09-00048-CR, 2009 WL 3930782, 

at *3–4 (Tex. App.—Houston [1st Dist.] Nov. 19, 2009, no pet.) (mem. op., not 

designated for publication) (holding that defendant waived Eighth Amendment 

claim by failing to object at punishment hearing or in motion for new trial); Wynn v. 

State, 219 S.W.3d 54, 61 (Tex. App.—Houston [1st Dist.] 2006, pet. ref’d) (same); 

Solis v. State, 945 S.W.2d 300, 301–02 (Tex. App.—Houston [1st Dist.] 1997, pet. 

ref’d) (same). An objection is timely if it is made as soon as the ground for the 

complaint becomes apparent, meaning “as soon as the [objecting party] knows or 

should know that an error has occurred.” London v. State, 490 S.W.3d 503, 507 (Tex. 

Crim. App. 2016) (internal quotation omitted). The objection must also be specific. 

See Rhoades v. State, 934 S.W.2d 113, 119 (Tex. Crim. App. 1996) (instructing that 

legal basis for objection must be specifically stated); Rezac v. State, 782 S.W.2d 869, 

870 (Tex. Crim. App. 1990) (“In order for an issue to be preserved on appeal, there 

must be a timely objection which specifically states the legal basis for the objection.”

(emphasis added)).

Here, Fleetwood did not object on Eighth Amendment grounds, nor did he 

object that his sentence was “grossly disproportionate,” at either the punishment 

hearing or in a motion for new trial. Fleetwood objected to his punishment for the 
6

first time only after his conviction was on appeal, when this Court entered an order 

of abatement and remanded the case to the trial court for the limited purpose of 

certifying Fleetwood’s right to appeal. See Nava v. State, 480 S.W.3d 759, 763 (Tex. 

App.—Houston [1st Dist.] 2015, pet. ref’d) (citing TEX. R. APP. P. 25.2(g) for 

principle that “[a] pending appeal suspends all proceedings in the trial court except 

those ordered by the Court of Appeals”). But Fleetwood did not state the specific 

ground for his objection—that the punishment was “grossly disproportionate” or 

cruel and unusual under the Eighth Amendment—at the abatement hearing. See 

Rhoades, 934 S.W.2d at 119; Rezac, 782 S.W.2d at 870. And the trial court,

recognizing the limited purpose of the abatement hearing, did not rule on the 

objection. See Nava, 480 S.W.3d at 763 (holding that “[w]hen an appeal is abated, 

the trial court regains limited jurisdiction” and may not consider matters not included 

within abatement order). In sum, Fleetwood did not make a timely or specific 

objection or obtain a ruling on his Eighth Amendment complaint; therefore, we hold 

that he has not preserved this complaint for appellate review. See TEX. R. APP. P.

33.1(a); see also Noland, 264 S.W.3d at 152; Wynn, 219 S.W.3d at 61; Solis, 945 

S.W.2d at 301–02.

We overrule Fleetwood’s sole issue.
7

Conclusion

We affirm the judgment of the trial court.

Amparo Guerra

Justice

Panel consists of Chief Justice Radack and Justices Rivas-Molloy and Guerra.

Do not publish. TEX. R. APP. P. 47.2(b).