Roger Arevalo v. State ( 2014 )

NUMBER 13-13-00485-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
ROGER AREVALO, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 377th District Court
of Victoria County, Texas.
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Benavides and Longoria
Memorandum Opinion by Justice Longoria
By one issue, appellant Roger Arevalo challenges his sentence of seven years’
imprisonment for felony driving while intoxicated (DWI). See TEX. PENAL CODE ANN.
§ 49.04 (West Supp. 2013), § 49.09(b)(2) (West 2011). We affirm.
I. BACKGROUND
In September of 2010, the State indicted appellant for one count of DWI
(subsequent offense), see id. § 49.04, and one count of possession of a controlled
substance in penalty group one in an amount of less than one gram. See TEX. HEALTH
& SAFETY CODE ANN. § 481.115(b) (West 2010). The State dismissed the possession
charge, and appellant pleaded guilty to the DWI charge. The trial court sentenced
appellant to ten years’ imprisonment, suspended the sentence, and placed appellant on
community supervision for a term of five years with a non-probated fine of $1,500.
The State filed a motion to revoke appellant’s community supervision in June of
2013, alleging that appellant violated multiple terms of his supervision. Appellant
pleaded “true” to four of the State’s grounds. Specifically, appellant pleaded “true” to
the State’s allegations that he committed the offense of burglary, a new DWI offense,
and that he failed to stay away from places where alcohol was served and did not keep
his curfew. The trial court found that all of the State’s alleged grounds were true,
revoked appellant’s community supervision, and imposed a sentence of seven years’
confinement in the Texas Department of Criminal Justice—Institutional Division. The
trial court also ordered that appellant receive drug and alcohol treatment while in prison.
This appeal followed.
II. DISCUSSION
By one issue, appellant argues that his sentence of seven years’ confinement “is
cruel and unusual punishment in light of the mitigating evidence presented by Appellant
at trial.” However, “[i]t is axiomatic that errors that are asserted on the part of the trial
court must generally be brought to the trial court’s attention.” Kim v. State, 283 S.W.3d
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473, 475 (Tex. App.—Fort Worth 2009, pet. ref’d) (citing TEX. R. APP. P. 33.1). This
applies even to most constitutional claims. Trevino v. State, 174 S.W.3d 925, 927 (Tex.
App.—Corpus Christi 2005, pet. ref’d). In order to preserve a complaint that a sentence
is disproportionate to the severity of the offense, it is necessary to either make a timely
and specific objection in the trial court or to raise the issue in a motion for new trial.
TEX. R. APP. P. 33.1; Rhoades v. State, 934 S.W.2d 113, 120 (Tex. Crim. App. 1996)
(en banc); Sample v. State, 405 S.W.3d 295, 303–04 (Tex. App.—Fort Worth 2013, pet.
ref’d); Trevino, 174 S.W.3d at 927–28. Appellant did not file a motion for new trial or
any other post-verdict motion, and he does not direct us to any point in the revocation
hearing where he objected to the sentence. Therefore, appellant has failed to preserve
this issue for our review. See Rhoades, 934 S.W.2d at 120; Sample, 405 S.W.3d at
303–04; Trevino, 174 S.W.3d at 927–28.
Accordingly, we overrule appellant’s sole issue.
III. CONCLUSION
We affirm the judgment of the trial court.
NORA L. LONGORIA
Justice
Do not publish.
TEX. R. APP. P. 47.2(b).
Delivered and filed the
16th day of January, 2014.
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