Antonio Buenano, Iii v. State ( 2004 )

  NUMBER 13-03-349-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

___________________________________________________________________

ANTONIO BUENANO, III,                                                   Appellant,

v.

THE STATE OF TEXAS,                                                      Appellee.

___________________________________________________________________

On appeal from the 36th District Court

of Aransas County, Texas.

__________________________________________________________________

MEMORANDUM OPINION

Before Chief Justice Valdez and Justices Rodriguez and Garza

Opinion by Justice Rodriguez

            Appellant, Antonio Buenano, III, appeals from his conviction for possession of a controlled substance, penalty group 1, heroin. See Tex. Health & Safety Code Ann. § 481.115(b) (Vernon 2003). Punishment was assessed at two years confinement in the State Jail Division of the Texas Department of Criminal Justice and a $2,000.00 fine.

         In his sole issue, appellant contends that the sentence imposed constitutes cruel and unusual punishment in violation of the Eighth Amendment to the United States Constitution. See U.S. Const. amend. VIII. Appellant asserts that the two year sentence is cruel and unusual because he suffers from a potentially fatal heart condition and is in need of surgery to prolong his life. He claims that being confined to the state jail will prevent him from receiving the medical attention he needs and will result in his death, thus making the two year sentence grossly disproportionate to the offense. We affirm.

         To preserve a complaint of cruel and unusual punishment for appellate review, appellant must present to the court a timely request, objection, or motion stating the specific grounds for the ruling desired. See Tex. R. App. P. 33.1 (a)(1)(A); Rhoades v. State, 934 S.W.2d 113, 120 (Tex. Crim. App. 1996). The constitutional right to be free from cruel and unusual punishment may be waived by failure to object. See Quintana v. State, 777 S.W.2d 474, 479 (Tex. App.– Corpus Christi 1989, pet. ref’d). The record reflects that appellant did not object to the sentence as violating his constitutional right at the time it was announced, nor did he raise this argument in a post-trial motion. By failing to object in the trial court appellant has waived his complaint.

         Even assuming appellant had properly preserved this issue and presented constitutional grounds for appellate review, we find no reversible error. We review a sentence imposed by the trial court for abuse of discretion. Jackson v. State, 680 S.W.2d 809, 814 (Tex. Crim. App. 1984). The general rule is that punishment falling within the applicable range prescribed by the legislature is not excessive, cruel or unusual, and will not be disturbed on appeal. Id.; Morales v. State, 897 S.W.2d 424, 427 (Tex. App.–Corpus Christi 1995, pet. ref’d). The punishment range for possession of heroin, less than one gram, is confinement for 180 days to two years and an optional fine not to exceed $10,000. See Tex. Health & Safety Code Ann. § 481.115(b) (Vernon 2003); Tex. Pen. Code Ann. § 12.35 (Vernon 2003). Appellant’s two year sentence and $2,000 fine is within the statutory range, and therefore the trial court did not abuse its discretion in imposing the sentence.

         Moreover, no constitutional violation has occurred as the harm appellant seeks to remedy is purely speculative. See State v. Mungia, 119 S.W.3d 814, 817 (Tex. Crim. App. 2003) (finding no constitutional violation had occurred where there was only the possibility that appellee may be killed if sent to prison). Appellant anticipates not receiving proper medical attention or treatment for his heart condition while in prison, which will result in his death. However, there is no evidence, other than appellant’s testimony, that this will occur. Therefore, appellant has failed to demonstrate any constitutional violation.

         Accordingly, appellant’s sole issue on appeal is overruled and we affirm the judgment of the trial court.

                                                                        NELDA V. RODRIGUEZ

                                                                        Justice

Do not publish.

Tex. R. App. P. 47.2(b).

Opinion delivered and filed

this 6th day of May, 2004.