Moctezuma, Donato v. State ( 2005 )

Affirmed and Memorandum Opinion filed December 15, 2005

Affirmed and Memorandum Opinion filed December 15, 2005.

In The

Fourteenth Court of Appeals

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NO. 14-04-00837-CR

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DONATO MOCTEZUMA, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the 228th District Court

Harris County, Texas

Trial Court Cause No. 978,991

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M E M O R A N D U M   O P I N I O N

Appellant Donato Moctezuma pleaded guilty to one count of aggravated robbery and was sentenced to fourteen years in prison.  On appeal, he argues that his sentence constitutes cruel and unusual punishment, and that the trial court committed reversible error by limiting his testimony at his punishment hearing.  We affirm.

I.  Factual and Procedural Background

On the evening of February 27, 2004, appellant confronted an individual named Juan Mosqueda, pointed a gun at him, and demanded possession of his vehicle. After taking possession of it, appellant and his friends stripped the vehicle of its contents.  Appellant was arrested later that day and subsequently indicted for aggravated robbery.  On June 11, 2004, appellant pleaded guilty to the charge without an agreed punishment recommendation.  A pre-sentence investigation hearing was held on August 6, 2004.  At the conclusion of the hearing, the trial court sentenced appellant to fourteen years in prison.

II.  Discussion

Appellant raises two issues on appeal.  First, he argues a fourteen-year sentence is cruel and unusual because it is Agrossly disproportionate@ to the crime committed and does not take into account appellant=s lack of any prior convictions.  In his second issue, appellant claims he was denied an opportunity to present evidence at the punishment hearing because the trial court refused to allow appellant=s counsel to conduct a redirect examination of appellant. Before we address the merits of appellant=s arguments, however, we first turn to whether error has been preserved.

To present a claim for appellate review, it is a prerequisite that appellant make a complaint stating the specific grounds for the objection to the trial court.  Tex. R. App. P. 33.1(a).  The record in the instant case indicates that appellant=s counsel said nothing following the trial court=s pronunciation of appellant=s sentence.  It also reveals that appellant=s counsel never objected to the trial court=s refusal to allow a redirect examination, nor did he attempt to perfect a bill of exceptions to show the questions that would have been propounded and the answers that would have been given. Because neither argument was presented to the trial court, the alleged errors were not preserved for review.  Nicholas v. State, 56 S.W.3d 760, 768 (Tex. App.CHouston [14th Dist.] 2001 pet. ref=d) (holding that appellant could not argue a sentence was cruel and unusual on appeal when he failed to raise that contention to the trial court); Castillo v. State, 939 S.W.2d 754, 760 (Tex. App.CHouston [14th Dist.] 1997, writ ref=d) (requiring appellant to have the record reflect the substance of the excluded testimony in order to present the issue for appellate review).  Accordingly, we overrule both of appellant=s issues, and affirm the judgment of the trial court.

/s/        Eva M. Guzman

Justice

Judgment rendered and Memorandum Opinion filed December 15, 2005.

Panel consists of Justice Fowler, Edelman, and Guzman.

Do Not Publish C Tex. R. App. P. 47.2(b).