Jorge Isaac Lazo v. State

Opinion issued November 17, 2005 In The Court of Appeals For The First District of Texas NOS. 01-04-00875-CR 01-04-00876-CR 01-04-00877-CR __________ JORGE ISAAC LAZO, JR., Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 185th District Court Harris County, Texas Trial Court Cause Nos. 973550, 974193, and 974038 MEMORANDUM OPINION Appellant, Jorge Isaac Lazo, Jr., entered an “open plea” of guilty to three counts of aggravated robbery. The trial court convicted appellant and sentenced him to three concurrent terms of 50 years in prison. In three points of error, appellant contends that the trial court (1) abused its discretion in failing to withdraw appellant’s guilty pleas, sua sponte; (2) violated appellant’s state due process rights by not placing him on community supervision and sentencing appellant to an excessive term; and (3) violated appellant’s federal right to be free from cruel and unusual punishment. We affirm. Background Appellant admitted that, on January 8, 2004, while driving his father’s car, he stopped people by bumping the rear bumpers of their cars and, once they had stopped, robbing the victims at gunpoint with his two companions. Appellant reported that, during one robbery, they took the victim’s car and drove it while committing other robberies. Appellant pled guilty to three counts of aggravated robbery. During the pre-sentence investigation, witnesses identified appellant as being the gunman in at least three of the robberies. Appellant admitted to robbing only one person at gunpoint, but admitted to driving the car during each robbery. Plea Withdrawal In point of error one, appellant contends that the trial court abused its discretion in failing to withdraw appellant’s guilty plea, sua sponte, on the basis that appellant raised an issue regarding his innocence. In Moon v. State, 572 S.W.2d 681 (Tex. Crim. App. 1978), the Court of Criminal Appeals held that a trial court is no longer required to sua sponte withdraw a plea of guilty for a defendant when the defendant waives a jury trial and enters a plea of guilty, even if evidence is adduced that might raise an issue of fact as to the guilt of the defendant. Id. at 681; Hargrave v. State, 10 S.W.3d 355, 359 (Tex. App.—Houston [1st Dist.] 1999, pet. ref’d) (holding that trial court not required to withdraw guilty plea sua sponte after bench trial even if evidence makes defendant’s innocence evident). The trial judge, as the trier of the facts, may decide, without withdrawing the plea, the issue either finding the defendant not guilty or guilty as he believes the facts require. Thomas v. State, 599 S.W.2d 823, 824 (Tex. Crim. App. 1980). The trial court has discretion to withdraw the plea sua sponte in a bench trial. See Graves v. State, 803 S.W.2d 342, 346 (Tex. App.—Houston [1st Dist.] 1990, pet. ref’d). We overrule point of error one. Due Process Rights In point of error two, appellant argues that his due process rights were violated when the trial court abused its discretion in not placing him on community supervision and in sentencing him to an excessive term. As a prerequisite for presenting a complaint for appellate review, the record must show that the complaint was made to the trial court by a timely request, objection, or motion. Tex. R. App. P. 33.1(a)(1)(A). The complaint must have stated the grounds for the ruling that the complainant sought from the trial court with sufficient specificity to make the trial court aware of the complaint unless the specific grounds were apparent from the context. Id. If a party fails to do this, error is not preserved, and the complaint is waived. Mendez v. State, 138 S.W.3d 334, 339 (Tex. Crim. App. 2004). It is well established that even constitutional and statutory rights may be waived by failure to object. Wright v. State, 28 S.W.3d 526, 536 (Tex. Crim. App. 2000) (holding constitutional issues can be waived); Solis v. State, 945 S.W.2d 300, 301 (Tex. App.—Houston [1st Dist.] 1997, pet. ref’d) (holding statutory and constitutional rights can be waived). At the pronouncement of sentence, appellant answered “no” when asked if he had anything to say as to why the sentence should not be pronounced against him. The record reveals that at no time during the proceedings did appellant raise an objection as to his due process rights. Thus, appellant has waived error on appeal. Mendez, 138 S.W.3d at 339. We overrule point of error two. Cruel and Unusual Punishment In point of error three, appellant asserts that the trial court’s imposition of three 50-year prison sentences for aggravated robbery constituted a violation of his right to be free from cruel and unusual punishment. The Texas Penal Code has specified punishment for a first degree felony from five to 99 years in prison. Tex. Pen. Code Ann. § 12.32(a) (Vernon 2004–2005); id. at § 29.03 (Vernon 2004–2005) (specifying aggravated robbery as a first-degree felony). The legislature is vested with the power to define crimes and prescribe penalties. State ex rel. Smith v. Blackwell, 500 S.W.2d 97, 104 (Tex. Crim. App. 1973). At trial, appellant did not object to the alleged disproportionality of the sentences. Appellant has waived any error. See Tex. R. App. P. 33.1(a)(1)(A); Solis, 945 S.W.2d at 301. We overrule point of error three. Conclusion We affirm the judgment of the trial court. George C. Hanks, Jr. Justice Panel consists of Justices Taft, Keyes, and Hanks. Do not publish. Tex. R. App. P. 47.2(b).