Martin Albert Olvera Jr. AKA Martin Olvera v. the State of Texas ( 2023 )

NUMBERS 13-22-00541-CR, 13-22-00542-CR,
13-22-00543-CR, 13-22-00544-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
MARTIN ALBERT OLVERA JR.
AKA MARTIN OLVERA, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 105th District Court
of Kleberg County, Texas.
MEMORANDUM OPINION
Before Chief Justice Contreras and Justices Benavides and Longoria
Memorandum Opinion by Chief Justice Contreras
In four appellate cause numbers stemming from four separate trial court causes,
appellant, Martin Olvera Jr., appeals from the revocation of his deferred adjudication
community supervision. By his sole issue, he argues that his punishments in each case
were disproportionate to the crimes committed and thus violated his Eighth and
Fourteenth Amendment rights. See U.S. CONST. amends. VIII, XIV. We affirm.
I. BACKGROUND
Between October 22, 2020, and June 18, 2021, appellant was indicted for the
following offenses: (1) two counts of theft of property with a value of less than $2,500 with
two or more prior theft convictions, state jail felonies enhanced to third-degree felonies,
see TEX. PENAL CODE ANN. §§ 31.03(e)(4) 1; (2) possession of a controlled substance, a
second-degree felony enhanced to a first-degree felony, see TEX. HEALTH & SAFETY CODE
ANN. § 481.116 2; (3) possession of body armor by a felon, a third-degree felony, see TEX.
PENAL CODE ANN. § 46.041 3; and (4) aggravated assault with a deadly weapon, a second-
degree felony enhanced to a first-degree felony. 4 See id. § 22.02. 5
On January 19, 2022, appellant pleaded guilty and was placed on deferred
adjudication community supervision for ten years in each case. Based on alleged
probation violations, the State filed motions to revoke and adjudicate guilt in each case
on March 24, 2022, and then filed amended motions to revoke in each case on April 22,
2022. On October 11, 2022, the trial court held a hearing on the amended motions
wherein appellant pled “true” to multiple allegations of violating his community supervision
conditions. After hearing evidence and testimony, the trial court found the allegations to
1 Appellate cause number 13-22-00543-CR.
2 Appellate cause number 13-22-00542-CR.
3 Appellate cause number 13-22-00544-CR.
4 Appellate cause number 13-22-00541-CR.
5 The indictments contained enhancement paragraphs, where indicated above, pursuant to the
repeat and habitual felony offender statutes. See TEX. PENAL CODE ANN. § 12.42(a), (b); id. § 12.425.
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be true, revoked appellant’s community supervision, adjudicated him guilty, and
proceeded to assess appellant’s punishment for each case.
For the two counts of theft, each of which carries a maximum sentence of ten
years, appellant was sentenced to ten years’ imprisonment. See TEX. PENAL CODE ANN.
§ 12.34(a). For the possession of a controlled substance count, which carries a maximum
sentence of ninety-nine years, appellant was sentenced to forty years’ imprisonment. See
id. § 12.32(a). For the possession of body armor by a felon count, which carries a
maximum sentence of ten years, appellant was sentenced to ten years’ imprisonment.
See id. § 12.34(a). For the aggravated assault with a deadly weapon count, which carries
a maximum sentence of ninety-nine years, appellant was sentenced to forty years’
imprisonment. See id. § 12.32(a). The trial court ordered all sentences to run concurrently.
This appeal followed.
II. DISCUSSION
By his sole issue, appellant argues that his sentences are disproportionate to the
seriousness of the crimes and therefore violative of the Eighth and Fourteenth
Amendments to the United States Constitution.
A. Standard of Review & Applicable Law
We review a court’s sentencing determination for an abuse of discretion. Jackson
v. State, 680 S.W.2d 809, 814 (Tex. Crim. App. 1984). Generally, if a sentence is
assessed within the legislatively determined range, it will not be found unconstitutional.
Ex parte Chavez, 213 S.W.3d 320, 323–24 (Tex. Crim. App. 2006) (noting that “the
sentencer’s discretion to impose any punishment within the prescribed range [is]
essentially ‘unfettered’”); Foster v. State, 525 S.W.3d 898, 912 (Tex. App.—Dallas 2017,
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pet. ref’d); see also Nightingale v. State, No. 13-22-00334-CR, 2023 WL 3243414, at *8
(Tex. App.—Corpus Christi–Edinburg May 4, 2023, no pet. h.) (mem. op., not designated
for publication).
But a narrow exception to the general rule exists: “an individual’s sentence may
constitute cruel and unusual punishment, despite falling within the statutory range, if it is
grossly disproportionate to the offense.” Alvarez v. State, 525 S.W.3d 890, 892 (Tex.
App.—Eastland 2017, pet. ref’d) (citing Solem v. Helm, 463 U.S. 277, 287 (1983)). An
allegation of excessive or disproportionate punishment is a legal claim “embodied in the
Constitution’s ban on cruel and unusual punishment” and based on a “narrow principle
that does not require strict proportionality between the crime and the sentence.” State v.
Simpson, 488 S.W.3d 318, 322–24 (Tex. Crim. App. 2016) (citing Harmelin v. Michigan,
501 U.S. 957, 1001 (1991) (Kennedy, J., concurring)); see U.S. CONST. amend. VIII
(“Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual
punishments inflicted.”). Outside the capital punishment context, however, a successful
challenge to proportionality of a particular sentence is “exceedingly rare.” Simpson, 488
S.W.3d at 322–23 (citing Lockyer v. Andrade, 538 U.S. 63, 73 (2003)); see Cisneros v.
State, 622 S.W.3d 511, 522 (Tex. App.—Corpus Christi–Edinburg 2021, no pet.).
“To determine whether a sentence for a term of years is grossly disproportionate
for a particular defendant’s crime, a court must judge the severity of the sentence in light
of the harm caused or threatened to the victim, the culpability of the offender, and the
offender’s prior adjudicated and unadjudicated offenses.” Simpson, 488 S.W.3d at 323
(citing Graham v. Florida, 560 U.S. 48, 60 (2010)). “In the rare case in which the threshold
comparison leads to an inference of gross disproportionality, the court should then
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compare the defendant’s sentence with the sentences received by other offenders in the
same jurisdiction and with the sentences imposed for the same crime in other
jurisdictions.” Id. (citing Graham, 560 U.S. at 60). “If this comparative analysis validates
an initial judgment that the sentence is grossly disproportionate, the sentence is cruel and
unusual.” Id. (citing Graham, 560 U.S. at 60).
B. Analysis
For an issue to be preserved on appeal, there must be a timely objection that
specifically states the legal basis for the objection. See TEX. R. APP. P. 33.1(a); see also
Layton v. State, 280 S.W.3d 235, 238–39 (Tex. Crim. App. 2009). When an imposed
sentence is within the punishment range and not illegal, the failure to specifically object
in open court or in a post-trial motion waives any error on appeal. Rhoades v. State, 934
S.W.2d 113, 120 (Tex. Crim. App. 1996); Noland v. State, 264 S.W.3d 144, 151 (Tex.
App.—Houston [1st Dist.] 2007, pet. ref’d); Trevino v. State, 174 S.W.3d 925, 927–28
(Tex. App.—Corpus Christi–Edinburg 2005, pet. ref’d); see also Caballero v. State, No.
13-19-00142-CR, 2019 WL 3820436, at *1 (Tex. App.—Corpus Christi–Edinburg Aug. 15,
2019, no pet.) (mem. op., not designated for publication). While there is no “hyper-
technical or formalistic use of phrases” required to preserve an issue on appeal, the
objecting party is still required to “let the trial judge know what he wants, why he thinks
he is entitled to it, and to do so clearly enough for the judge to understand him at a time
when the judge is in a proper position to do something about it.” Clark v. State, 365
S.W.3d 333, 339 (Tex. Crim. App. 2012) (quoting Pena v. State, 285 S.W.3d 459, 464
(Tex. Crim. App. 2009)); see also Hagris v. State, No. 13-21-00156-CR, 2022 WL 710081,
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at *2 (Tex. App.—Corpus Christi–Edinburg Mar. 10, 2022, no pet.) (mem. op., not
designated for publication).
The punishment range for a first-degree felony is “imprisonment . . . for any term
of not more than 99 years or less than 5 years.” TEX. PENAL CODE ANN. § 12.32(a). The
punishment range for a third-degree felony is “imprisonment . . . for any term of not more
than 10 years or less than 2 years.” Id. § 12.34(a). Here, the sentences are within the
legal range, and there is nothing in the record showing appellant objected to the
sentences imposed by the trial court on any grounds, nor that he challenged the sentence
through a post-trial motion. Thus, appellant has failed to preserve any error and has
forfeited his complaint on appeal. See TEX. R. APP. P. 33.1(a); Rhoades, 934 S.W.2d at
120; Noland, 264 S.W.3d at 151; Trevino, 174 S.W.3d at 927–28. We overrule appellant’s
sole issue. See TEX. R. APP. P. 33.1(a); Ex parte Chavez, 213 S.W.3d at 323–24.
III. CONCLUSION
We affirm the trial court’s judgments.
DORI CONTRERAS
Chief Justice
Do not publish.
TEX. R. APP. P. 47.2 (b).
Delivered and filed on the
22nd day of June, 2023.
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