Robert Gonzales v. State ( 2015 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-15-00032-CR
ROBERT GONZALES APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM THE 396TH DISTRICT COURT OF TARRANT COUNTY
TRIAL COURT NO. 1351979D
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MEMORANDUM OPINION 1
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In a single issue, appellant Robert Gonzales appeals his conviction for
arson and 18-year sentence. Because we conclude Gonzales has defaulted his
claim that his sentence was cruel and unusual, we affirm the trial court’s
judgment.
1
See Tex. R. App. P. 47.4.
Shane Bradshaw and Akita McGowan were asleep in their home on
December 3, 2013, when McGowan heard something hit the bedroom window,
heard a sloshing sound, smelled gasoline, heard the click of a lighter, and heard
a “whoosh.” Bradshaw and McGowan were able to escape before their bedroom
became engulfed in flames. Gonzales was indicted for arson with the intent to
damage a habitation with a deadly weapon—a combustible or flammable liquid or
material. See Tex. Penal Code Ann. § 28.02(a), (d)(2) (West 2011). Gonzales
pleaded guilty to the offense without a plea-bargain agreement but did not enter
a plea to the deadly-weapon notice. After a punishment hearing and after
reviewing a presentence-investigation report, the trial court made an affirmative
deadly-weapon finding and assessed his punishment at 18 years’ confinement.
On appeal, Gonzales argues that his sentence is cruel and unusual
because he is young, he accepted responsibility for his crime, and he “is a
diligent and good worker.” However, Gonzales failed to raise this issue in the
trial court at the punishment hearing 2 and did not file a motion for new trial.
Thus, he has procedurally defaulted this claim. See Sample v. State, 405 SW.3d
295, 303–04 (Tex. App.—Fort Worth 2013, pet. ref’d). We overrule Gonzales’s
sole issue and affirm the trial court’s judgment. See Tex. R. App. P. 43.2(a).
2
When the trial court asked if there was “any legal reason why sentence
should not be pronounced,” Gonzales’s counsel stated that there was not.
2
/s/ Lee Gabriel
LEE GABRIEL
JUSTICE
PANEL: DAUPHINOT, WALKER, and GABRIEL, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: October 1, 2015
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