Federico M. Garza v. State

Affirmed and Memorandum Opinion filed July 1, 2008

Affirmed and Memorandum Opinion filed July 1, 2008.

In The

Fourteenth Court of Appeals

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NO. 14-07-00408-CR

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FEDERICO M. GARZA, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 177th District Court

Harris County, Texas

Trial Court Cause No. 1077211

M E M O R A N D U M  O P I N I O N

In a single issue, appellant, Federico M. Garza, contends his sentence for aggravated assault violates constitutional and statutory prohibitions against cruel and unusual punishment.  Because appellant failed to preserve his complaint for appellate review, we issue this memorandum opinion and affirm.  See Tex. R. App. P. 47.4.

Appellant pleaded Aguilty@ to aggravated assault.  The trial court deferred adjudication, placed appellant on community supervision for three years, and assessed a fine.  Subsequently, the State filed a motion to adjudicate guilt, alleging appellant violated several conditions of community supervision.  At a hearing on the motion, appellant pleaded Atrue@ to these allegations but offered various explanations for the violations.  The trial court found the allegations were true and adjudicated appellant=s guilt.  The trial court sentenced appellant to six-years= confinement and assessed a fine.  This appeal followed.

In his sole issue, appellant contends the six-year sentence violates the prohibitions against cruel and/or unusual punishment prescribed by the United States Constitution, the Texas Constitution, and the Texas Code of Criminal Procedure.^[1] See U.S. Const. amend. VIII; Tex. Const. art. I, ' 13; Tex. Code Crim. Proc. Ann. art. 1.09 (Vernon 2005).^[2] Specifically, appellant argues the sentence is grossly disproportionate to the severity of the offense.

To preserve error for appellate review, a party must make a timely request, objection, or motion, stating the specific grounds for the desired ruling.  See Tex. R. App. P. 33.1(a) (1).  The constitutional and statutory rights to be free from cruel and/or unusual punishment may be waived by failing to object.  See Ajisebutu v. State, 236 S.W.3d 309, 311B13 (Tex. App.CHouston [1st Dist.] 2007, pet. ref=d); Nicholas v. State, 56 S.W.3d 760, 768 (Tex. App.CHouston [14th Dist.] 2001, pet. ref=d); Quintana v. State, 777 S.W.2d 474, 479 (Tex. App.CCorpus Christi 1989, pet. ref=d).  In this case, appellant did not object that his sentence constitutes cruel and unusual punishment during the hearing at which the sentence was imposed or in any post-trial motion. Therefore, appellant waived his complaint.

Accordingly, we overrule appellant=s sole issue and affirm the trial court=s judgment.

/s/        Charles W. Seymore

Justice

Judgment rendered and Memorandum Opinion filed July 1, 2008.

Panel consists of Justices Frost, Seymore, and Guzman.

Do Not Publish C Tex. R. App. P. 47.2(b).

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^[1]  The United States Constitution prohibits cruel and unusual punishment while the Texas Constitution and Texas Code of Criminal Procedure prohibit cruel or unusual punishment.  See U.S. Const. amend. VIII; Tex. Const. art. I, ' 13; Tex. Code Crim. Proc. Ann. art. 1.09 (Vernon 2005)

^[2]  In his brief, appellant references article 1.01, which merely states the correct title of the Code of Criminal Procedure.  See Tex. Code Crim. Proc. Ann. art. 1.01 (Vernon 2005).  Appellant clearly means to cite article 1.09, which prohibits cruel and unusual punishment.  Tex. Code Crim. Proc. Ann. art. 1.09.