COURT OF A PPEAL S EI GHTH D I STRI CT OF TEXAS ELPASO, TEXAS

WI L FRED JEROME COL L I NS, Appellant, V. THE STATE OF TEXAS, Appellee
. § § § § § § § No. 08-10-00102- CR

Appea l from the Criminal District Court No. 3 of Tar rant County , Texas (TC# 1037961D)

O P I N I O N Appellant wa s indicted in Fe bruar y 2007 for thef

t of an a utomobile valued betwe en $20,000 and $100,000. In April 2007, the trial cour t acc epted a

plea a g ree ment in which Appellant conf

essed to the c harg es alleg ed in the indictment in exchang e for a sente nce of

three y ear s’ def err ed adjudica

tion, a $300 fine, a

nd restitution. I n the ag ree ment, Appellant wa s admonished that the sente ncingrang e for the indicted off

ense, a third deg ree felony , was two to ten y ear s’ imprisonment. Wit hin the month of the plea a g ree ment, Appellant violated the te rms of his community supervision by

failing to report to his parole office r. The State f iled a motion to adjudicate g uilt based on A

ppellant’s non-c ompliance on Apr il 26, 2007. In Dec ember 2009, the State amende d its mot ion alleg ing that in addition to Appellant’s continuing f ailure to re port to his parole off icer and fa iling to pay

his fines and re stitut ion, Appellant also committed a ne w cr iminal offenc e by stealing a sec ond automobile.The trial c ourt hea rd evide nce on the State’s amende d motion on Februa ry 18, 2010. Appellant plea d “true ” to the State’s a lleg ations reg ardinghis failure to pa y fines and r estitution,
as we ll as his failure to re port to his parole off icer . The State wa ived the alleg ation reg ardingthe
new c riminal offe nse duringthe hea ring , and the tria l court proc eede d solely on the community supervision violations. During the hea ring , Appellant choose to testify . He e x plained to the court that shortly

afte r he w as plac ed on probation in 2007 family circ umstances, includingthe death of his father , require d him to travel to Alabama . Although A ppellant initially

returne d to Texas, his mot her soon f

ell ill and he re turned to Alaba ma to car e for

her on a long te rm basis. Appellant re mained in Alaba ma for two a

nd a half y ear s, and admitted that despite se vera l trips back to Te x as, he f

ailed to comply

with the terms of his community supervision. The trial c ourt adjudicated Appellant guilt of the orig inal third deg ree felony offe nse, and sentenc ed him to five y ear s’ imprisonment. Appellant ra ises a sing le issue on appe al in which he contends that the c ourt’s dec ision to sentence him to five y ear s constitutes an abuse of discretion. Although A

ppellant conc edes that the sentenc e is within the statutory rang e for a third deg ree felony , he ar g ues that g iven his particular family circ umstance, the sentenc e violates the constitutional prohibiti on ag ainst crue l and unusual punishment. To prese rve a

complaint for a

ppellate r eview, a

party must have ra ised the complaint to the trial cour

t via a timely

and spec ific objec tion, request, or motion which statues the specific g rounds for the desired r

uling. T E X .R.A P P .P. 33.1(a)( 1). In addition, the trial court must rule on the objection, re quest, or motion, or the re cord must demonstrate the complainingparty objected to the court’s r efusa l to rule. T E X .R.A P P .P. 33.1(a)( 2). An a ppellant’s fa ilure to object re g arding a disproportionate sentenc e, either at the time the sente nce is imposed or by a motion for new
-2-trial, waive s the issue for r eview on a ppeal. Merc ado v. State , 718 S.W .2d 291, 296 (Tex.Crim.App. 1986). Appellant’s c omplaint that his sentence wa s disproportionate under the circ umstances explained in his t estimony was not ra ised by

objection at the time the tria l court announc ed the sentenc e in open c ourt, nor wa s it raised in Appellant’s motion for ne w trial. Ac cording ly , the argument is not preserve d for our revie w, and I ssue One is ove rruled. Havingoverr

uled Appellant’ s sole issue, we a ffirm the tria l court’s judg ment.

Fe bruar y 25, 2011 DAVI D WEL L I NGTONCHEW, C hief Just ice Be fore Chew, C.J ., McClure, a nd Rivera, JJ
. (Do Not Publish)

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