I read most of the new criminal opinions from the Dallas Court of Appeals. Many defendants want to appeal not just their trial, but their sentence. A common example is a defendant who goes to the judge for punishment and receives a long jail sentence instead of probation.
The defendant will then claim the sentence is cruel and unusual punishment or that the judge abused her discretion. Ergo, the sentence is unconstitutional and should be changed.
Week after week I see these appeals denied for the same reason. The defendants do not object to the sentence when it is pronounced.
LESSON OF THE DAY:
If you are sentenced in a criminal case and you want to appeal said sentence you must OBJECT when the sentence is pronounced. If not, this is what the Dallas Court of Appeals will say.
Appellant did not complain about the sentence either at the time it was imposed or in a motion for new trial. See Tex. R. App. P. 33.1(a)(1); Castaneda v. State, 135 S.W.3d 719, 723 (Tex. App.-Dallas 2003, no pet.). Even constitutional rights, including the right to be free from cruel and unusual punishment, may be waived. Rhoades v. State, 934 S.W.2d 113, 120 (Tex. Crim. App. 1996); Castaneda, 135 S.W.3d at 723…. We affirm the trial court’s judgment.
Texas has a tradition of throwing out issues on appeal if the defense does not object on the record. Even worse, if the defendant objects; but not for the right reasons, then the error will still be waived on appeal. This doctrine allows many errors, even constitutional errors, to go without justice. This “waiver by omission” is a horrible practice, but it is very much the current appellate law in Texas.
A larger issue that may be addressed in the near future is- can a sentence that is within the range of punishment be unconstitutional? That is, if the sentencing possibilities range from probation to 99 years in jail, and you get 99 years, can that cruel and unusual or an abuse of discretion?