John Candelario Alaniz v. State ( 2013 )

NUMBER 13-12-00338-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
JOHN CANDELARIO ALANIZ, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 148th District Court
of Nueces County, Texas.
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Garza and Perkes
Memorandum Opinion by Chief Justice Valdez
By one issue, appellant, John Candelario Alaniz, challenges the sentences
assessed by the jury and imposed by the trial court for his conviction for twelve counts
of sexual assault of a child. See TEX. PENAL CODE ANN. 22.021(a)(1)(B) (West 2011).
Appellant contends that the sentences imposed by the trial court are cruel, unusual and
disproportionate to the seriousness of the alleged offense. See U.S. CONST. amend.
VIII, XIV. We affirm.
I. BACKGROUND
Appellant was charged by indictment with and pleaded guilty to twelve counts of
sexual assault of a child. See TEX. PENAL CODE ANN. 22.021(a)(1)(B). After the
punishment phase of the trial, the jury assessed appellant’s punishment at twenty years’
imprisonment and a 5,000 dollar fine for each count. After the jury delivered the
sentence, the trial court asked both the prosecution and defense, “Counsel, anything
else before I accept the verdict.” Appellant’s trial counsel responded, “Nothing from the
defense, Judge.” The trial court also asked “And, defendant, do you have anything to
say before I pronounce sentence?” Appellant responded, “No, sir, ” and his trial counsel
stated “Your Honor, if I may, if you’re going to formally pronounce sentencing at this
time, I would ask that you—that the Court consider in its discretion, as is allowed under
the Code, stacking these sentences.” The trial court then formally pronounced the
sentences assessed by the jury and ordered them to run concurrently. This appeal
ensued.
II. APPLICABLE LAW AND ANALYSIS
In his sole issue, appellant contends that the sentences imposed by the trial court
were disproportionate to the seriousness of the alleged offense, in violation of the
Eighth and Fourteenth Amendments to the United States Constitution. See U.S. CONST.
amend. VIII, XIV.
The Eighth Amendment provides that “[e]xcessive bail shall not be required, nor
excessive fine imposed, nor cruel and unusual punishment inflicted.” See U.S. CONST.
amend. VIII. The Eighth Amendment applies to punishments imposed by state courts
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through the Due Process Clause of the Fourteenth Amendment. See U.S. CONST.
amend. XIV. Yet, it is possible for this right, and every constitutional or statutory right,
to be waived by a “failure to object.” Smith v. State, 721 S.W.2d 844, 855 (Tex. Crim.
App. 1986).
Generally, to preserve error for appellate review, a party must present a timely
objection to the trial court, state the specific grounds for the objection, and obtain a
ruling. TEX. R. APP. P. 33.1(a). The failure to specifically object to an alleged
disproportionate or cruel and unusual sentence in the trial court or in a post-trial motion
waives any error for our review. Noland v. State, 264 S.W.3d 144, 151 (Tex. App.—
Houston [1st Dist.] 2007, pet. ref’d) (“[I]n order to preserve for appellate review a
complaint that a sentence is grossly disproportionate, constituting 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.”); Trevino v. State, 174
S.W.3d 925, 928 (Tex. App.—Corpus Christi 2005, pet. ref’d) (providing that “by failing
to object to the trial court’s sentence, [the appellant] forfeited his complaint” that the
sentence was cruel and unusual); see also Daliet v. State, No. 13-11-00611-CR, 2013
Tex. App. LEXIS 3871, at *5 (Tex. App.—Corpus Christi Mar. 28, 2013, pet. ref’d)
(mem. op., not designated for publication) (holding in regard to an appeal on
proportionality of sentencing that, “appellant acknowledges that no objection was made
to the sentence in the trial court, but invites us to review the sentence under our
inherent power. The error being unpreserved, we decline the invitation.”).
Appellant complains for the first time on appeal that his eighth amendment rights
have been violated because the sentences imposed by the trial court were cruel,
unusual, and grossly disproportionate to the offense committed. In his appellate brief,
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appellant claims that he “raised this specific issue to ensure there was no waiver of an
anticipatory claim in Federal Court.” The record reveals, however, that appellant did not
object to the sentences during the punishment phase of the trial or in any post-trial
motion. We further note that the sentences fall within the punishment range of a
second-degree felony. See TEX. PENAL CODE ANN. § 12.33(a) (West Supp. 2011)
(providing that second-degree felony has a punishment range of two to twenty years’
confinement). A punishment falling within the limits prescribed by a valid statute is not
per se excessive, cruel, or unusual. Trevino, 174 S.W.3d at 928. Therefore, because
appellant failed to object to the proportionality of sentences that were not
unconstitutional per se, appellant’s argument is waived.1 See TEX. R. APP. P. 33.1(a);
Noland, 264 S.W.3d at 151; Trevino, 174 S.W.3d at 928; see also Daliet, 2013 Tex.
App. LEXIS 3871, at *5. We overrule appellant’s sole issue.
III. CONCLUSION
We affirm the trial court’s judgment.
__________________
ROGELIO VALDEZ
Chief Justice
Do not publish.
TEX. R. APP. P. 47.2(b).
Delivered and filed the
25th day of July, 2013.
1
Appellant also claims that “it was within a court’s power to review a sentence imposed by judge
or jury and to determine whether such sentence passed [c]onstitutional muster, even if no objections were
made during trial.” We note that this argument seems to suggest that a trial court has discretion to make
a ruling in this situation, not that a defendant need not make a proper objection at trial to preserve
argument for appeal. Additionally, to support this claim, appellant cites two cases in which Texas courts
considered a court’s power to adjudicate challenges to the constitutionality of legislative acts and not
whether disproportionate sentencing arguments were preserved for appeal. See Lovejoy v. Lillie, 569
S.W.2d 501, 503 (Tex. Civ. App.—Tyler 1978, writ ref'd n.r.e); Houston Chronicle Publ’g Co. v. City of
Houston, 531 S.W.2d 177, 185 (Tex. Civ. App.—Houston [14th Dist.] 1975, writ ref’d). Appellant does not
explain, and we fail to see, the relevance of these citations to the present case. Instead, we rely on the
case law cited in the body of this opinion in determining that, because he did not make an objection,
appellant waived his argument on appeal that the sentence imposed is disproportionate. See Noland,
264 S.W.3d at 151; Trevino, 174 S.W.3d at 928; see also Daliet, 2013 Tex. App. LEXIS 3871, at *5.
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