Sergio Fonza-Carey v. State

In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
No. 06-15-00201-CR
SERGIO FONZA-CAREY, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 188th District Court
Gregg County, Texas
Trial Court No. 43866-A
Before Morriss, C.J., Moseley and Burgess, JJ.
Memorandum Opinion by Justice Moseley
MEMORANDUM OPINION
Pursuant to an open plea, the trial court found Sergio Fonza-Carey guilty of unlawful
possession of a firearm by a felon.1 After a trial to the bench, the trial court imposed the minimum
sentence of two years’ imprisonment.2 On appeal, Fonza-Carey complains that the punishment
imposed violates the prohibition against disproportionate sentences under the Eighth Amendment
to the United States Constitution.
To preserve a complaint for appellate review, Fonza-Carey must have presented to the trial
court a timely request, objection, or motion that stated the specific grounds for his desired ruling,
or the complaint must be apparent from the context. See TEX. R. APP. P. 33.1(a)(1); Hookie v.
State, 136 S.W.3d 671, 679–80 (Tex. App.—Texarkana 2004, no pet.). We have previously held
that to preserve a disproportionate sentence complaint on appeal, a defendant must either object at
the time the sentence is imposed, or assert the complaint in a timely filed motion for new trial. See
Mullins v. State, 208 S.W.3d 469, 470 n.2 (Tex. App.—Texarkana 2006, no pet.); Hookie, 136
S.W.3d at 680; Jackson v. State, 989 S.W.2d 842, 845 (Tex. App.—Texarkana 1999, no pet.). Our
review of the record shows that this complaint was not presented to the trial court.3 Therefore,
Fonza-Carey’s sole complaint on appeal has not been preserved for our review.
1
See TEX. PENAL CODE ANN. § 46.04(a), (c) (West 2011).
2
See TEX. PENAL CODE ANN. §§ 12.34(a) (West 2011).
3
Fonza-Carey made no objection when his sentence was imposed. Although he filed a generalized motion for new
trial, the motion did not raise the issue of a grossly disproportionate sentence or assert a violation of the Eighth
Amendment of the United States Constitution.
2
We affirm the judgment.
Bailey C. Moseley
Justice
Date Submitted: August 19, 2016
Date Decided: August 22, 2016
Do Not Publish
3