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Deleon v. State

Court of Appeals of Texas, Thirteenth District, Corpus Christi
Aug 12, 2004
No. 13-03-00494-CR (Tex. App. Aug. 12, 2004)

Opinion

No. 13-03-00494-CR

Memorandum Opinion delivered and filed August 12, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.2(b).

On appeal from the 36th District Court of San Patricio County, Texas.

Before Chief Justice VALDEZ and Justices HINOJOSA and CASTILLO.


MEMORANDUM OPINION


On February 14, 1994, appellant, Oscar DeLeon, a/k/a Oscar Ozuna DeLeon, pleaded nolo contendere to the offense of aggravated possession of marihuana. The trial court: (1) found appellant guilty; (2) assessed his punishment at ten years imprisonment and a $1,500 fine; (3) suspended the prison sentence; and (4) placed him on community supervision for ten years. Later, the State filed a motion to revoke, alleging appellant had violated various conditions of his community supervision. Appellant pleaded "true" to all of the allegations in the motion. After an evidentiary hearing, the trial court found that appellant had violated the conditions of his community supervision, revoked his community supervision, and reassessed appellant's punishment at five years imprisonment. The trial court has certified that this is not a plea-bargain case, and the appellant has the right to appeal. See TEX. R. APP. P. 25.2(a)(2). In a single issue, appellant complains the trial court erred in sentencing him for a first-degree felony, when at the time of sentencing the offense was a second-degree felony, thus constituting cruel and unusual punishment. We affirm. As this is a memorandum opinion not designated for publication and the parties are familiar with the facts, we will not recite them here except as necessary to advise the parties of our decision and the basic reasons for it. TEX. R. APP. P. 47.4. Appellant was required to raise any complaints regarding his sentence by an appeal after the trial court initially assessed and suspended the sentence in 1994. TEX. CODE CRIM. PROC. ANN. art. 42.12, § 23(b) (Vernon Supp. 2004) ("The right of the defendant to appeal for a review of the conviction and punishment, as provided by law, shall be accorded the defendant at the time he is placed on community supervision. When he is notified that his community supervision is revoked for violation of the conditions of community supervision and he is called on to serve a sentence in a jail or in the institutional division of the Texas Department of Criminal Justice, he may appeal the revocation."). However, appellant failed to appeal then, and any challenge now to the sentence imposed at that time is untimely. As a consequence, he now may challenge his sentence only if it was outside the maximum range of punishment, which would be unauthorized by law and therefore illegal. Mizell v. State, 119 S.W.3d 804, 806 (Tex.Crim.App. 2003).

See Act of May 30, 1983, 68th Leg., R.S., ch. 425, § 4.051, 1983 Tex. Gen. Laws 2388 (amended 1993) (current version at TEX. HEALTH SAFETY CODE ANN. § 481.121(b)(5) (Vernon 2003)).

1. Illegal Sentence

Unlike most trial errors, which are forfeited if not timely asserted, a party is not required to make a contemporaneous objection to the imposition of an illegal sentence. Id. Here, the sentence assessed by the trial court was not illegal because it was within the statutorily permissible range for the offense of aggravated possession of marihuana on the date appellant committed the offense. See Act of May 30, 1983, 68th Leg., R.S., ch. 425, § 4.051, 1983 Tex. Gen. Laws 2388-89 (amended 1993) (current version at TEX. HEALTH SAFETY CODE ANN. § 481.121(b)(6) (Vernon 2003)) (establishing range of punishment for possession of more than fifty pounds but less than 200 pounds of marihuana at five to ninety-nine years or life imprisonment).

2. Cruel Unusual Punishment

Appellant complains that the trial court erred in sentencing him for a first-degree felony, when at the time of sentencing the offense was a second-degree felony, thus constituting cruel and unusual punishment. The record reflects that appellant did not object to the sentence as violating his constitutional right at the time it was announced, nor did he raise this argument in a post-trial motion. To preserve a complaint of cruel and unusual punishment for appellate review, appellant must present to the court a timely request, objection, or motion stating the specific grounds for the ruling desired. See Tex.R.App.P. 33.1(a). It is well-settled that even constitutional rights may be waived by a failure to object. Wright v. State, 28 S.W.3d 526, 536 (Tex.Crim. App. 2000); Quintana v. State, 777 S.W.2d 474, 479 (Tex. App.-Corpus Christi 1989, pet. ref'd). By failing to object in the trial court, appellant has waived his complaint. Appellant's sole issue is overruled. We affirm the trial court's order revoking appellant's community supervision.


Summaries of

Deleon v. State

Court of Appeals of Texas, Thirteenth District, Corpus Christi
Aug 12, 2004
No. 13-03-00494-CR (Tex. App. Aug. 12, 2004)
Case details for

Deleon v. State

Case Details

Full title:OSCAR DELEON, A/K/A OSCAR OZUNA DELEON, Appellant v. THE STATE OF TEXAS…

Court:Court of Appeals of Texas, Thirteenth District, Corpus Christi

Date published: Aug 12, 2004

Citations

No. 13-03-00494-CR (Tex. App. Aug. 12, 2004)