Salinas, Guadalupe Esquivel v. State ( 2002 )

In The

Court of Appeals

For The

First District of Texas

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NO. 01-02-00037-CR

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GUADALUPE ESQUIVEL SALINAS, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the 248th District Court

Harris County, Texas

Trial Court Cause No. 876,770

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O P I N I O N

Appellant pleaded guilty without an agreed recommendation to aggravated robbery. The trial court assessed punishment at ten years confinement. We affirm.

Cruel and Unusual Punishment

In his sole point of error, appellant contends that his ten-year sentence constitutes cruel and unusual punishment in violation of the Eight Amendment of the United States Constitution. U.S. Const. amend. VIII.

Aggravated robbery is a first-degree felony. Tex. Pen. Code Ann. § 29.03(b) (Vernon 1994). First-degree felonies are punishable by imprisonment for a term of life or five to 99 years, and the possibility of a fine not to exceed $10,000. Tex. Pen. Code Ann. § 12.32(a) (Vernon 1994). Appellant's ten-year sentence falls well within this range; therefore, it does not constitute excessive, cruel, or unusual punishment. See Harris v. State, 656 S.W.2d 481, 486 (Tex. Crim. App. 1983); Pequeno v. State, 710 S.W.2d 709, 711 (Tex. App.--Houston [1st Dist.] 1986, pet. ref'd).

Moreover, to preserve error for appellate review, appellant must make a timely, specific objection, at the earliest opportunity, and obtain an adverse ruling. See Tex. R. App. P. 33.1. Appellant did not object at the sentencing hearing to his ten-year sentence on the basis of cruel or unusual punishment. Nor did he raise the issue in a post-judgment motion. Accordingly, he has waived this point of error. See Steadman v. State, 31 S.W.3d 738, 742 (Tex. App.--Houston [1st Dist.] 2000, pet. ref'd) (holding that defendant waived issue of whether 40-year sentence for aggravated robbery was cruel and unusual punishment).

The sole point of error is overruled.

Conclusion

We affirm the judgment of the trial court.

   Adele Hedges

Justice

Panel consists of Justices Hedges, Keyes, and Evans. ⁽¹⁾

Do not publish. Tex. R. App. P. 47.

1. The Honorable Frank G. Evans, retired Chief Justice, Court of Appeals, First District of Texas at Houston, participating by assignment.