Nicholas Darris Marshall v. the State of Texas

Opinion issued April 16, 2026




                                     In The

                             Court of Appeals
                                    For The

                         First District of Texas
                            ————————————
                             NO. 01-24-00482-CR
                           ———————————
                NICHOLAS DARRIS MARSHALL, Appellant
                                       V.
                      THE STATE OF TEXAS, Appellee


                   On Appeal from the 300th District Court
                           Brazoria County, Texas
                       Trial Court Case No. 93742-CR


                         MEMORANDUM OPINION

      Appellant Nicholas Darris Marshall appeals his conviction for possession of

between 4 and 200 grams of methamphetamine. See TEX. HEALTH & SAFETY CODE

§§ 481.102(6), 481.115(d). Marshall pleaded guilty and in exchange for the plea,

the State agreed to waive two enhancement paragraphs in the indictment. The trial
court sentenced Marshall to 12 years’ imprisonment. On appeal, he contends that

his sentence was grossly disproportionate to the offense committed. We affirm.

                                    Background

      Marshall was pulled over by law enforcement during a traffic stop. Law

enforcement discovered there was an outstanding warrant for Marshall’s arrest. As

part of the arrest, Marshall’s vehicle was inventoried, and during the inventory,

officers detected the odor of marijuana. A search of Marshall’s car revealed a

marijuana joint in the driver’s door pocket and various prescription pill bottles in

the center console. Officers recovered a box in the back seat with plastic bags of

controlled substances in street-level packaging. Officers also discovered a bag

containing a significant amount of marijuana on the back floorboard and a baby

bottle filled with purple liquid, which the officer identified as codeine.

      Crime lab analysis determined that the various pills and liquid found in

Marshall’s vehicle contained a mixture of methamphetamine and caffeine with a

total weight of 4.25 grams. Further testing determined that the sample contained

2.1152 grams of methamphetamine.

      Marshall pleaded guilty and proceeded to a sentencing hearing. Two officers

who conducted the traffic stop and assisted searching Marshall’s vehicle testified at

the hearing. A crime lab analyst testified to the amount of methamphetamine

recovered from the car. Two of Marshall’s older sisters, Marshall’s uncle, and


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Marshall also testified. Marshall testified that he had taken the methamphetamine

pills from his girlfriend after they got in a fight. He did not want her to abuse them,

and he forgot the pills were in his car. At the conclusion of the hearing, the trial

court sentenced Marshall to 12 years’ imprisonment.

                            Proportionality of Sentence

       In a single issue, Marshall argues that his sentence violates the Eighth

Amendment’s prohibition against grossly disproportionate sentences. He argues

that the trial court should have sentenced him to a two-to-five-year prison term

after taking into account the length of time since his last felony conviction, the

number of days he spent incarcerated awaiting trial, his guilty plea and acceptance

of responsibility, and the circumstances under which he testified the drugs were in

his car.

A.     Marshall did not preserve his Eighth Amendment complaint for our
       review.

       Preliminarily, the State asserts that Marshall did not preserve this error for

our review because he did not make a timely objection when the sentence was

imposed during the punishment hearing or in a motion for new trial. To preserve

for appellate review a complaint that a sentence is grossly disproportionate

constituting cruel and unusual punishment, a defendant must present to the trial

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



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ruling. Noland v. State, 264 S.W.3d 144, 152 (Tex. App.—Houston [1st Dist.]

2007, pet. ref’d) (citing TEX. R. APP. P. 33.1(a)).

      Marshall did not raise an Eighth Amendment objection or argue that his

sentence was grossly disproportionate during the punishment hearing or in a

motion for new trial. While Marshall filed a “Motion for Reconsideration or

Reduction of Sentence,” that motion did not argue a constitutional violation or alert

the court to his complaint about the proportionality of his sentence.1 Rule 33.1 does

not require that an objection be made in “hyper-technical or formalistic” language,

but the objecting party must still “let the trial judge know what he wants, why he

thinks he is entitled to it, and . . . do so clearly enough for the judge to understand

him at a time when the judge is in the proper position to do something about it.”

Pena v. State, 285 S.W.3d 459, 464 (Tex. Crim. App. 2009) (quoting Lankston v.

State, 827 S.W.2d 907, 909 (Tex. Crim. App. 1992)). Marshall has not preserved

for our review his complaint that his punishment violates the Eighth Amendment.

B.    Even if preserved, Marshall would not prevail on his Eighth
      Amendment challenge.

      Even assuming Marshall had preserved the issue for our review, we

conclude that his sentence is not grossly disproportionate to the offense. A


1
      The motion asked the trial court to reconsider punishment, arguing that “society
      [would] be adequately protected” and he would “still be punished” if the court
      reconsidered and assessed a sentence less than 12 years’ imprisonment. Marshall
      asked the court to place him on probation.
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successful challenge to proportionality is exceedingly rare and requires a finding of

“gross disproportionality.” State v. Simpson, 488 S.W.3d 318, 322–23 (citing

Lockyer v. Andrade, 583 U.S. 63, 73 (2003)). Punishment is generally not

considered to be violative of the Eighth Amendment if the imposed sentence falls

within the statutory range of punishment for the offense for which the defendant

was convicted. Simpson, 488 S.W.3d at 323; Toledo v. State, 519 S.W.3d 273, 286

(Tex. App.—Houston [1st Dist.] 2017, pet. ref’d).

      Beyond the statutory range, to determine whether a sentence for a term of

years is grossly disproportionate for a particular defendant’s crime, we consider the

severity of the sentence in light of the harm caused to the victim and the

defendant’s culpability, together with any prior offenses. Simpson, 488 S.W.3d at

323. In the exceptional case in which this threshold comparison supports an

inference of gross disproportionality, we compare the defendant’s sentence with

the sentences received by other offenders in the same jurisdiction and those

imposed for the same crime in other jurisdictions. Id. If this analysis validates an

initial judgment that the sentence is grossly disproportionate, then the sentence is

cruel and unusual. Id.

      In Simpson, the statutory range for the defendant’s second-degree felony

robbery conviction was 5 to 99 years. Simpson, 488 S.W.3d at 323. The defendant

appealed his 25-year sentence on Eighth Amendment grounds. Id. Because the


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sentence “fell well within the statutory range,” the Court of Criminal Appeals did

not compare the sentence to other sentences; rather, the Court concluded that the

sentence was not grossly disproportionate and did not cross the threshold

requirement for a comparative examination of sentences meted out in other cases.

Id.

      Similarly, Marshall’s 12-year sentence is well within the statutory range, and

the trial court heard evidence which it could consider in assessing his culpability. 2

Assuming the Eighth Amendment issue had been preserved for our review,

Marshall did not meet the threshold for a comparative review of sentencing in

similar cases, and the sentence in this case is not grossly disproportionate.

      We overrule Marshall’s sole issue on appeal.




2
      Because the State waived the enhancement paragraphs in the indictment in
      exchange for Marshall’s guilty plea, the punishment range for the second-degree
      felony was 2 to 20 years’ imprisonment and a fine not exceeding $10,000. See
      TEX. PENAL CODE § 12.33.
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                                   Conclusion

      We affirm the trial court’s judgment.




                                               Susanna Dokupil
                                               Justice

Panel consists of Justices Rivas-Molloy, Johnson, and Dokupil.

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




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