Humberto Galvin v. State

Opinion issued July 14, 2011. In The Court of Appeals For The First District of Texas ———————————— NO. 01-10-00729-CR ——————————— Humberto Juventino Galvin, Appellant V. State of Texas, Appellee On Appeal from the 209th District Court Harris County, Texas Trial Court Case No. 1209921 MEMORANDUM OPINION Humberto Juventino Galvin pleaded guilty to possession of over 400 grams of opium with the intent to deliver. See Tex. Health & Safety Code Ann. § 481.115(a) (West 2010). Lacking a plea agreement with the State, Galvin asked the trial court to assess his sentence. The punishment range for possession of over 400 grams of opium “is punishable by imprisonment in the Texas Department of Criminal Justice for life or for a term of not more than 99 years or less than 10 years, and a fine not to exceed $100,000.” Tex. Health & Safety Code Ann. § 481.115(f) (West 2010). The trial court, after considering a pre-sentence investigation report and other evidence presented at the sentencing hearing, assessed a punishment of thirty years’ imprisonment and a $10,000 fine. In his sole issue on appeal, Galvin contends that the trial court erred in assessing a punishment which is grossly disproportionate to the offense he committed and resulted in cruel and unusual punishment, in violation of the Eighth Amendment of the United States Constitution and article 1, section 13 of the Texas Constitution. Finding that Galvin waived this contention by failing to raise it in the trial court, we affirm. Background At the sentencing hearing, Officer M. Sinegal testified to observing Galvin make two deliveries of 29.8 grams of opium and 28.7 grams of opium, respectively. Later that evening, police detained Galvin during a traffic stop. During the search, they recovered another 625 grams of opium. Sinegal further stated that Galvin was selling the opium as heroin, which was especially dangerous to the drug user. Opium, Sinegal explained, is unrefined heroin, and, unlike heroin, is usually smoked, not injected. Injection of opium is dangerous and could possibly result in death. Sinegal also testified to finding additional contraband in the course of searching Galvin’s apartment, including 45.84 grams of cocaine, a small amount of alprazolam, over $1,000 in cash, and a firearm. Defense counsel asked for a sentence close to the statutory minimum, pointing out that Galvin did not have a significant criminal history and that he cooperated with the authorities after his arrest. The trial court assessed the sentence and certified Galvin’s right to appeal. This appeal followed. Discussion As a threshold matter, we consider whether Galvin preserved his constitutional complaints for appellate review. In his brief, Galvin concedes that he did not object in the trial court that the sentence was grossly disproportionate to the crime, but contends that “such grounds were readily apparent from the context of counsel’s summation to the trial court requesting a punishment ‘somewhere near the 15 year range.’” To preserve error for appellate review, the record must show that the defendant raised his complaint by a timely and specific objection. Tex. R. App. P. 33.1(a)(1)(A); Steadman v. State, 31 S.W.3d 738, 741 (Tex. App.—Houston [1st Dist.] 2000, pet. ref’d). This requirement serves two main purposes: (1) to inform the trial court of the objection and give the opportunity to rule on it and (2) to give opposing counsel the opportunity to take appropriate action in response. See Tex. R. App. P. 33.1(a)(1); Wright v. State, 178 S.W.3d 905, 931(Tex. App.—Houston [14th Dist.] 2005, pet. ref’d) (holding that appellant failed to preserve error when appellant’s counsel quoted objectionable phrase but did not state basis for objection). A failure to object at trial constitutes waiver. See Hookie v. State, 136 S.W.3d 671, 679–80 (Tex. App.—Texarkana 2004, no pet.) (holding appellant waived disproportionality claim for failure to state constitutional objection of cruel and unusual punishment at time sentence was imposed); see also Trahan v. State, 991 S.W.2d 936, 939 (Tex. App.—Houston [1st Dist.] 1999, pet. dism’d) (holding that defendant may waive even claim of constitutional error by failing to make adequate objection); Jackson v. State, 989 S.W.2d 842, 845 (Tex. App.—Texarkana 1999, no pet.) (holding that disproportionality does not fall within “right not recognized” exception to the contemporaneous objection rule and must be alleged by timely objection to preserve for appe1late review). The Eighth Amendment of the United States Constitution requires that a criminal sentence be proportionate to the crime for which a defendant has been convicted. Solem v. Helm, 463 U.S. 277, 290, 103 S. Ct. 3001, 3009 (1983). To preserve for appellate review a complaint that a sentence violates this constitutional requirement and amounts to cruel and unusual punishment, a defendant must present to the trial court a timely request, objection, or motion stating the specific grounds for the ruling desired. Tex. R. App. P. 33.1(a); Rhoades v. State, 934 S.W.2d 113, 120 (Tex. Crim. App. 1996) (concluding that defendant waived error because he presented argument for first time on appeal); Wynn v. State, 219 S.W.3d 54, 61 (Tex. App.—Houston [1st Dist.] 2006, no pet.) (holding that defendant’s failure to object to life sentence as cruel and unusual punishment waived error); Solis v. State, 945 S.W.2d 300, 301 (Tex. App.—Houston [1st Dist.] 1997, pet. ref’d) (holding defendant could not assert cruel and unusual punishment for first time on appeal). Here, Galvin merely requested a sentence at the lower end of the punishment range based on the surrounding circumstances. He did not invoke any constitutional ground for his request or assert disproportionality. Galvin’s request is not sufficiently specific for either the trial court to rule on or to elicit a response from the State. After the trial court announced its sentence at the hearing, Galvin did not raise any objection to the assessed punishment to the trial court, either at the hearing or in a motion for new trial. See Solis, 945 S.W.2d at 301. An Eighth Amendment or article 1, section 13 objection thus is not readily apparent from the context. We hold that Galvin waived his issue for review. See Tex. R. App. P. 33.1(a)(1)(A). Conclusion Galvin failed to preserve for appellate review his federal and state constitutional challenges to the sentence as cruel and unusual punishment. We therefore affirm the judgment of the trial court. All pending motions are dismissed as moot. Jane Bland Justice Panel consists of Justices Jennings, Bland, and Massengale. Do not publish. Tex. R. App. P. 47.2(b).