Santos Resendez Rivas, Jr. v. State

Rivas v. SOT NUMBER 13-03-00209-CR COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI – EDINBURG SANTOS RESENDEZ RIVAS, JR., Appellant, v. THE STATE OF TEXAS, Appellee. On appeal from the 156th District Court of Bee County, Texas. MEMORANDUM OPINION Before Chief Justice Valdez and Justices Hinojosa and Castillo Memorandum Opinion by Justice Hinojosa On December 20, 2002, pursuant to a plea agreement, appellant, Santos Resendez Rivas, Jr., pleaded guilty to the second degree felony offense of indecency with a child. In accordance with the plea agreement, the trial court deferred the adjudication of guilt, placed appellant on community supervision for a term of eight years, assessed a $1,500 fine, and ordered that appellant serve thirty days in jail as a condition of his community supervision. The trial court also ordered that appellant comply with the following conditions of community supervision: (1) Neither commit nor be convicted of any offense against the laws of the State of Texas, any other State, or of the United States of America; and (2) Observe a curfew and remain in your residence from 10:00 p.m., until 5:00 a.m., daily during the term of community supervision. On January 2, 2003, the State filed a motion to revoke appellant’s community supervision. The motion alleged appellant had violated the conditions of his community supervision by driving and operating a motor vehicle in a public place, while intoxicated, at 1:06 a.m. on December 25, 2002, in Bee County, Texas. Appellant pleaded true to the allegations in the motion, and the trial court found the plea to be freely and voluntarily made. The trial court found the allegations in the motion to be true, adjudicated appellant guilty of the offense of indecency with a child and assessed his punishment at twelve years imprisonment and no fine. The trial court has certified that this case “is not a plea-bargain case and the defendant has the right of appeal.” See Tex. R. App. P. 25.2(a)(2). In a single issue, appellant contends the punishment assessed by the trial court violates the Eighth and Fourteenth Amendments to the United States Constitution because it is disproportionate to the seriousness of the offense. The record reflects appellant made no objection to the sentence, either at the time of sentencing or in any motion, on any grounds. Nor did he ever lodge an objection, under constitutional or other grounds, to any part of the sentencing procedure or to the alleged disparity, cruelty, unusualness or excessiveness of the sentence. Without proper preservation, even constitutional error may be waived. Tex. R. App. P. 33.1(a); Wright v. State, 28 S.W.3d 526, 536 (Tex. Crim. App. 2000); Luna v. State, 70 S.W.3d 354, 359 (Tex. App.–Corpus Christi 2002, pet. ref’d). To preserve an error for appellate review, a party must present a timely objection to the trial court, state the specific grounds for the objection, and obtain a ruling. Tex. R. App. P. 33.1(a). Generally, an appellant may not complain of an error pertaining to his sentence or punishment if he has failed to object or otherwise raise the error in the trial court. Mercado v. State, 718 S.W.2d 291, 296 (Tex. Crim. App. 1986); see also Solis v. State, 945 S.W.2d 300, 301 (Tex. App.–Houston [1st Dist.] 1997, pet. ref’d) (claim of grossly disproportionate sentence violative of Eighth Amendment waived by failure to object); Quintana v. State, 777 S.W.2d 474, 479 (Tex. App.–Corpus Christi 1989, pet. ref’d) (failure to object to sentence as cruel and unusual waives error). We note that during the adjudication hearing, counsel asked the trial court to place appellant on community supervision and order that he be treated for alcoholism. However, a request for probation and treatment does not constitute a sufficient objection to preserve an issue of disproportionate sentencing. See Jackson v. State, 989 S.W.2d 842, 844-45 (Tex. App.–Texarkana 1999, no pet.). Accordingly, we hold that appellant failed to preserve error for our review. Appellant’s sole issue is overruled. The trial court’s judgment is affirmed. FEDERICO G. HINOJOSA Justice Do not publish. See Tex. R. App. P. 47.2(b). Memorandum Opinion delivered and filed this the 5th day of August, 2004.