Anthony Rodriguez v. State

COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
ANTHONY RODRIGUEZ, §
No. 08-11-00349-CR
Appellant, §
Appeal from the
v. §
396th District Court
THE STATE OF TEXAS, §
of Tarrant County, Texas
Appellee. §
(TC# 1229914D)
§
OPINION
Appellant Anthony Rodriguez was charged in Tarrant County, 1 Texas with the
third-degree felony offense of possession of methamphetamine, a controlled substance having an
aggregate weight of one gram or more but less than four grams. TEX. HEALTH & SAFETY CODE
ANN. § 481.115(c) (West 2010).
BACKGROUND
On February 12, 2011, members of the Tarrant County Narcotics Task Force and SWAT
team executed a no-knock search warrant at 2901 Kathleen Lane in Euless, Texas. SWAT team
officers discovered Appellant sitting on a couch in the living room of the residence and observed in
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As this case was transferred from our sister court in Fort Worth, we decide it in accordance with the
precedent of that court. TEX. R. APP. P. 41.3.
Appellant’s hand a clear glass pipe with white residue and a small plastic bag containing a
substance which appeared to be methamphetamine. A field test was conducted at the narcotics
office shortly after the search, and both the residue in the pipe and the substance in the bag tested
positive for methamphetamine. The substance in the bag was later tested by the Tarrant County
Medical Examiner’s Office and confirmed to be methamphetamine with an aggregate weight of
1.55 grams.
At the conclusion of trial, the jury found Appellant guilty of possession of a controlled
substance, namely methamphetamine, having an aggregate weight of one gram or more but less
than four grams. TEX. HEALTH & SAFETY CODE ANN. § 481.115(c) (West 2010). At punishment
the State presented evidence of Appellant’s previous felony convictions to support the repeat
offender notice set out in the indictment. The State also presented evidence of Appellant’s
juvenile history of delinquent behavior, and his association with the Crips gang in support of its
twenty-year sentencing request. The trial court found the repeat offender notice to be true and
sentenced Appellant to fifteen years’ confinement in the Institutional Division of the Texas
Department of Criminal Justice. When the trial court asked if there was any legal reason why
sentencing should not be pronounced, Appellant’s counsel responded that there was none.
Appellant raises two issues on appeal.
DISCUSSION
In Issue One, Appellant challenges the legal sufficiency of the evidence to support his
conviction. After reciting the standard for reviewing evidence and determining whether it is
legally sufficient, Appellant states, “The State of Texas did not meet its burden of proof, proof
beyond a reasonable doubt, in that it failed to prove that Appellant committed the offense as is set
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out in the indictments.” However, without citing to any legal authority, Appellant merely states
what federal courts “indicate” about reasonable doubt and the nature of proof which satisfies the
purported reasonable-doubt standard. In his concluding paragraph for Issue One, Appellant sets
forth Texas case law regarding appellate court examinations of the evidence for sufficiency,
followed by a single citation to two portions of the record. Appellant neither sets out the relevant
facts from the cited pages of the record nor applies any law to the facts contained in the cited pages
of the record. Appellant presents no legal argument explaining why the evidence on the cited
pages is legally insufficient to support his conviction.
Because we are under no obligation to make Appellant’s arguments for him, we find this
issue is inadequately briefed and presents nothing for our review. TEX. R. APP.P. 38.1(i); see
Lucio v. State, 351 S.W.3d 878, 896-97 (Tex.Crim.App. 2011), cert. denied, 132 S. Ct. 2712, 183
L. Ed. 2d 71 (2012), citing Busby v. State, 253 S.W.3d 661, 673 (Tex.Crim.App. 2008), and
Cardenas v. State, 30 S.W.3d 384, 393–94 (Tex.Crim.App. 2000). Moreover, no evidence was
presented at trial to contradict the State’s evidence that Appellant possessed a controlled
substance, that the controlled substance weighed between one and four grams, or that the
controlled substance was tested and confirmed to be methamphetamine.
As fact finder, the jury was permitted to believe or disbelieve any or all of the evidence
presented in reaching a verdict. Lancon v. State, 253 S.W.3d 699, 707 (Tex.Crim.App. 2008).
The jury was free to weigh the credibility of the State’s evidence and having no evidence to the
contrary before it, rationally find all of the elements of the offense beyond a reasonable doubt.
Grant v. State, 247 S.W.3d 360, 369 (Tex.App. – Austin 2008, pet. ref’d) (uncontroverted
evidence was sufficient to support the jury’s finding that the defendant committed the charged
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offense of aggravated assault); see also Espericueta v. State, 838 S.W.2d 880, 882-83 (Tex.App. –
Corpus Christi 1992, no pet.) (uncontroverted evidence was sufficient to support the trial court’s
ruling on the legality of a traffic stop). Issue One is overruled.
In Issue Two, Appellant complains that his sentence is grossly disproportionate “when
considered in light of other sentences from the [Eighth] District of Texas for the same offenses and
in light of the facts and circumstances which constituted the offenses” and runs afoul of the Eighth
Amendment of the United States Constitution and Article I, section 13 of the Texas Constitution,
which prohibit cruel and unusual punishment. In order to assert error on appeal pertaining to
sentencing or punishment, an appellant must have properly preserved the error below. TEX. R.
APP. P. 33.1(a)(1); Mercado v. State, 718 S.W.2d 291, 296 (Tex.Crim.App. 1986); Thompson v.
State, 243 S.W.3d 774, 775 (Tex.App. – Fort Worth 2007, pet. ref’d). Error may be preserved
through a motion for new trial if the motion was presented to the trial court so that it was brought to
the court’s actual attention; however, mere filing of the motion is not enough. Thompson, 243
S.W.3d at 776. The movant for new trial bears the burden of presenting the motion to the trial
court by providing it with actual notice. Carranza v. State, 960 S.W.2d 76, 78–79
(Tex.Crim.App. 1998). Additionally, in order to preserve error, a motion for new trial must be
sufficiently specific to make the court aware of the complaint and allow it to make a ruling, or if
the trial court refuses to make a ruling, the party should object to that refusal. TEX. R. APP. P.
33.1(a)(1)(A); TEX. R. APP. P. 33.1(a)(2).
There is nothing in the record indicating that Appellant objected to his sentence after it was
pronounced. When asked by the trial court, Appellant’s counsel responded that there was no
legal reasoning why sentencing should not be pronounced and subsequently made no objections
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regarding the proportionality of the sentence when it was pronounced. Although Appellant filed
a motion for new trial, nothing in the record indicates that the motion was presented to the trial
court, or that the trial court had actual notice of the motion, or that the trial court ruled on the
motion, or that Appellant objected to the trial court’s failure to rule on the motion. The motion for
new trial did not contain a specific sentencing or proportionality complaint and merely stated that a
new trial should be granted because, “The verdict and sentence are contrary to the law and
evidence.” Based on the record before us, we conclude that Appellant failed to preserve his
disproportionate sentence complaint. Thompson, 243 S.W.3d at 775.
We observe that Appellant’s sentence falls within the statutory limits. TEX. PENAL CODE
ANN. § 12.42(a) (West 2011); TEX. PENAL CODE ANN. § 12.33 (West 2011). The Second Court of
Appeals has determined that sentences within the statutory limits generally do not constitute
disproportional, excessive or cruel or unusual punishment. Kim v. State, 283 S.W.3d 473, 475
(Tex.App. – Fort Worth 2009, pet. ref’d); Dale v. State, 170 S.W.3d 797, 799 (Tex.App. – Fort
Worth 2005, no pet.); Alvarez v. State, 63 S.W.3d 578, 580 (Tex.App. – Fort Worth 2001, no pet.).
Additionally, the Texas Court of Criminal Appeals has stated that punishments falling within the
prescribed statutory limitations are not cruel and unusual punishment within the meaning of the
Texas Constitution. Nichols v. State, 494 S.W.2d 830, 836 (Tex.Crim.App. 1973); Samuel v.
State, 477 S.W.2d 611, 614-15 (Tex.Crim.App. 1972). See also, Atchison v. State, 124 S.W.3d
755, 760 (Tex.App. – Austin 2003, pet. ref’d).
Appellant was convicted of a third-degree felony offense. However, his punishment was
assessed based on a second-degree felony conviction pursuant to the habitual felony offender
section of the Texas Penal Code. TEX. PENAL CODE ANN. § 12.42(a) (West 2011). The statutory
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sentencing limits for a felony in the second degree are a term of confinement that is not less than
two years or more than twenty years. TEX. PENAL CODE ANN. § 12.33 (West 2011). In this case,
Appellant was sentenced to fifteen years’ confinement, five years below the statutorily allowed
maximum. TEX. PENAL CODE ANN. § 12.33 (West 2011).
Issue Two is overruled.
CONCLUSION
The trial court’s judgment is affirmed.
GUADALUPE RIVERA, Justice
November 22, 2013
Before McClure, C.J., Rivera, and Antcliff, JJ.
Antcliff, J., not participating
(Do Not Publish)
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