Jason Paul Tijerina v. State

NUMBER 13-17-00002-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
JASON PAUL TIJERINA, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 377th District Court
of Victoria County, Texas.
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Benavides and Longoria
Memorandum Opinion by Justice Benavides
Appellant Jason Paul Tijerina appeals his sentence imposed by the trial court. By
one issue, Tijerina argues the trial court’s order of consecutive sentences was
constitutionally excessive. We affirm.
I. BACKGROUND
Tijerina was charged on an 18-count indictment: Count 1-aggravated sexual
assault of a child, Counts 2 and 4-17-possession with the intent to distribute child
pornography, Count 3-sexual performance by a child, and Count 18-indecency with a child.
See TEX. PENAL CODE ANN. §§ 22.021, 43.26, 43.25, 21.11 (West, Westlaw through 2017
1st C.S.). Tijerina pleaded guilty to all 18 counts. As part of the plea of guilty, Tijerina
waived his right to appeal or the filing of a motion for new trial related to the guilt portion
of the hearing.
During a subsequent sentencing hearing, after hearing testimony from both
witnesses for the State and Tijerina, the trial court sentenced Tijerina to ninety-nine years’
imprisonment on Count 1, twenty years’ imprisonment on Counts 2 and 4-17, and ten
years’ imprisonment on Count 18 in the Texas Department of Criminal Justice–Institutional
Division, with all counts to run consecutive to each other as well as Tijerina’s federal
sentence.1 Tijerina did not object to the sentence or file a motion for new trial. This appeal
follows.
II. EXCESSIVE SENTENCING
By one issue, Tijerina argues that the trial court’s stacking on his sentence
constituted a constitutionally excessive sentence.
A. Applicable Law
The Eighth Amendment provides that “[e]xcessive bail shall not be required, nor
excessive fines imposed, nor cruel and unusual punishments inflicted.” U.S. CONST.
amend. VIII. Even though within the range permitted by law, a sentence may nonetheless
be disproportionate to the gravity of the offense. See Ex parte Chavez, 213 S.W.3d 320,
323–24 (Tex. Crim. App. 2006).
1 Tijerina had previously pleaded guilty and was sentenced in federal court to additional charges.
2
We review a trial court's decision to “stack” or cumulate sentences for an abuse of
discretion. See TEX. CODE CRIM. PROC. ANN. art. 42.08(a) (West, Westlaw through 2017
1st C.S.); Waddell v. State, 456 S.W.3d 366, 369 (Tex. App.—Corpus Christi 2015, no
pet.). Under article 42.08 of the code of criminal procedure, the trial judge has the
discretion to cumulate the sentences for two or more convictions. TEX. CODE CRIM. PROC.
ANN. art. 42.08(a). An abuse of discretion will generally be found only if: “(1) the trial court
imposes consecutive sentences when the law requires concurrent sentences, (2) the trial
court imposes concurrent sentences when the law requires consecutive ones, or (3) the
trial court otherwise fails to observe the statutory requirements pertaining to sentencing.”
Nicholas v. State, 56 S.W.3d 760, 765 (Tex. App.—Houston [14th Dist.] 2001, pet. ref'd).
To preserve error for appellate review, the complaining party must present a timely
and specific objection to the trial court, and obtain a ruling. TEX. R. APP. P. 33.1(a). A
party's failure to specifically object to an alleged disproportionate or cruel and unusual
sentence in the trial court or in a post-trial motion waives any error for the purposes of
appellate review. See 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)
(“[I]n order to preserve for appellate review a complaint that a sentence is grossly
disproportionate, constituting cruel and unusual punishment, a defendant must present to
the trial court a timely request, objection, or motion stating the specific grounds for the
ruling desired.”).
B. Discussion
Having reviewed the record, we note that appellant did not object to an alleged
disproportionate or cruel and unusual sentence in the trial court or in a post-trial motion.
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See TEX. R. APP. P. 33.1(a); Arriaga v. State, 335 S.W.3d 331, 334 (Tex. App.—Houston
[14th Dist.] 2010, pet. ref’d). Accordingly, appellant has waived any error for purposes of
appellate review. See Rhoades, 934 S.W.2d at 120; Noland, 264 S.W.3d at 151.
Appellant's issue is overruled.
III. CONCLUSION
We affirm the trial court’s judgment.
GINA M. BENAVIDES,
Justice
Do not publish.
TEX. R. APP. P. 47.2 (b).
Delivered and filed the
31st day of May, 2018.
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