Richard Pena v. State ( 2000 )

NUMBERS 13-00-089-CR

13-00-090-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI

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RICHARD PENA, Appellant,

v.

THE STATE OF TEXAS, Appellee.

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On appeal from the 156th District Court of Bee County, Texas.

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O P I N I O N

Before Justices Hinojosa, Chavez and Rodriguez

Opinion by Justice Chavez

Appellant Richard Pena pleaded guilty to two separate counts of burglary of a habitation and pleaded true to an enhancement paragraph regarding a prior felony conviction for burglary of a habitation without a plea agreement. The trial court found appellant guilty and imposed punishment for both offenses at thirty-five years confinement in prison. On appeal, he contends that the punishment was disproportionate to the seriousness of the offense, in violation of the Eighth and Fourteenth Amendments of the United States Constitution. We overrule the issue and affirm the conviction.

At the hearing on punishment, appellant did not object to the sentence imposed. In order to preserve a complaint for appellate review, a party must have presented the trial court with a timely request, objection or motion, stating the specific grounds for the ruling he desired if those grounds were not apparent from the context. Tex. R. App. P. 33.1(a)(1). Almost any right, constitutional or statutory, may be waived by failure to make a timely and specific objection. Little v. State, 758 S.W.2d 551, 563 (Tex. Crim. App. 1988); Jones v. State, 825 S.W.2d 470, 472 (Tex. App.­Corpus Christi 1991, pet. ref'd). As a general rule, an appellant cannot assert error pertaining to his sentence or punishment when he failed to raise such error in the trial court. Mercado v. State, 718 S.W.2d 291, 296 (Tex. Crim. App. 1986). Schneider v. State, 645 S.W.2d 463, 466 (Tex. Crim. App. 1983). This Court has previously held that an issue concerning the severity of the defendant's sentence was not preserved when the defendant's contentions were not raised in either a motion for new trial or by objection. Quintana v. State, 777 S.W.2d 474, 479 (Tex. App.­Corpus Christi 1989, pet. ref'd). Appellant failed to raise this issue in the trial court and has not preserved the error. Tex. R. App. P. 33.1(a)(1).

The judgment of the trial court is affirmed.

MELCHOR CHAVEZ

Justice

Do not publish.

Tex. R. App. P. 47.3.

Opinion delivered and filed this

the 3rd day of August, 2000.