Russell v. State
341 S.W.3d 526
Tex. App.2011Background
- Appellant David Allen Russell pleaded true to violations of deferred adjudication conditions relating to two indecency-with-a-child-by-contact offenses in each of two causes (0747847D and 0750351D).
- Trial court adjudicated him guilty on those pleas and sentenced him to fifteen years’ confinement in each cause.
- Russell challenged the sentences as grossly disproportionate under the Eighth Amendment.
- The State preserved by arguing the issue was not properly preserved for appellate review due to lack of trial‑court objection or new-trial motion.
- The court of appeals affirmed, holding the issue was not preserved for review and overruled Russell’s sole argument.
- Concurring opinions noted by Justice Dauphinot and Justice Gabriel.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Russell's sentences are grossly disproportionate under the Eighth Amendment. | Russell argues disproportionate sentences for the offenses. | State maintains no preservation; no trial objection. | Issue not preserved; affirmed judgments. |
Key Cases Cited
- Kim v. State, 283 S.W.3d 473 (Tex.App.-Fort Worth 2009) (preservation required; error not preserved without timely objection or motion)
- Noland v. State, 264 S.W.3d 144 (Tex.App.-Houston [1st Dist.] 2007) (failure to preserve disproportionality review)
- Wynn v. State, 219 S.W.3d 54 (Tex.App.-Houston [1st Dist.] 2006) (same preservation principle)
- Smith v. State, 10 S.W.3d 48 (Tex.App.-Texarkana 1999) (same preservation principle)
- Mercado v. State, 718 S.W.2d 291 (Tex.Crim. App. 1986) (general rule: no error review without objection in trial court)