Rudy Garza Molina v. the State of Texas ( 2021 )

IN THE
TENTH COURT OF APPEALS
No. 10-20-00078-CR
RUDY GARZA MOLINA,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 443rd District Court
Ellis County, Texas
Trial Court No. 44633CR
MEMORANDUM OPINION
Appellant, Rudy Garza Molina, was charged by indictment with assault family
violence with a prior family violence conviction, enhanced by two prior felony
convictions. See TEX. PENAL CODE ANN. § 22.01(b)(2)(A). A jury found Molina guilty of
the charged offense. Molina elected for the trial court to assess punishment. At the
punishment hearing, Molina pleaded “true” to both enhancement allegations. The trial
court found the enhancement allegations to be “true” and sentenced Molina to forty
years’ incarceration in the Institutional Division of the Texas Department of Criminal
Justice with no fine.
In two issues on appeal, Molina contends that his forty-year sentence is grossly
disproportionate to the crime and inappropriate to the offender, thus violating his
constitutional rights pursuant to the Eighth Amendment to the United States
Constitution and article I, section 13 of the Texas Constitution. See U.S. CONST. amend.
VIII; see also TEX. CONST. art. I, § 13. We affirm.
Issues One and Two
A disproportionate-sentence claim must be preserved for appellate review. See
TEX. R. APP. P. 33.1(a)(1); Rhoades v. State, 934 S.W.2d 113, 120 (Tex. Crim. App. 1996)
(noting that constitutional rights, including the right to be free from cruel and unusual
punishment, may be waived); Mercado v. State, 718 S.W.2d 291, 296 (Tex. Crim. App. 1986)
(en banc); see also 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.”).
At the punishment hearing, Molina did not assert his disproportionate-sentence
claim. Indeed, when asked if there was “any legal reason why sentence should not be
imposed today for Mr. Molina,” defense counsel responded, “No, Your Honor.” Further,
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Molina did not raise a disproportionate-sentence claim in his motion for new trial or
otherwise present a post-trial objection to the imposed sentence. Therefore, Molina’s
complaints in these two issues are not preserved and are overruled.
Conclusion
We affirm the judgment of the trial court.
MATT JOHNSON
Justice
Before Chief Justice Gray,
Justice Johnson,
and Justice Smith
Affirmed
Opinion delivered and filed September 29, 2021
Do not publish
[CRPM]
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