Opinion
NO. 01-12-00123-CR
05-24-2012
SIMON VARGAS FAJARDO, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 209th District Court
Harris County, Texas
Trial Court Case No. 1312168
MEMORANDUM OPINION
Simon Vargas Fajardo pled guilty to aggravated sexual assault of a child and was sentenced to forty years' confinement. Fajardo contends that the sentence is grossly disproportionate to the offense, constituting cruel and unusual punishment under the Texas and United States constitutions. We affirm.
Background
Fajardo pled guilty to aggravated sexual assault of a child without an agreed recommendation as to punishment. After a presentence investigation, the trial court held a sentencing hearing. At the hearing, neither party objected to the presentencing investigation report or offered any evidence. The trial court sentenced Fajardo to forty years' confinement.Fajardo did not object to his sentence.
The statutory range of punishment for a first-degree felony is "not more than 99 years or less than 5 years," with the option for a fine not to exceed $10,000. See TEX. PENAL CODE ANN. § 12.32 (West 2011).
Fajardo contends the trial court's punishment was grossly disproportionate to the crime he committed and thus violated the Eighth Amendment of the United States Constitution and Article 1, Section 13 of the Texas Constitution.Fajardo concedes that the trial court's sentence is "within the range of punishment authorized by the Texas Legislature for first degree felonies" and that a punishment within the statutory range generally is not excessive, cruel, or unusual under the Texas Constitution. See Delacruz v. State, 167 S.W.3d 904, 906 (Tex. App.—Texarkana 2005, no pet.). He states, however, that his sentence may nevertheless be grossly disproportionate under the federal constitutional standard.
The State responds that Fajardo waived this alleged error by failing to make an objection at trial.Fajardo asserts that he may raise his complaint for the first time on appeal.
Preservation of Error
To preserve for appellate review a complaint that a sentence amounts to 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. See TEX. R. APP. P. 33.1(a)(1); Noland v. State, 264 S.W.3d 144, 151 (Tex. App.— Houston [1st Dist.] 2007, pet. ref'd); Wynn v. State, 219 S.W.3d 54, 61 (Tex. App.—Houston [1st Dist.] 2006, no pet.); Solis v. State, 945 S.W.2d 300, 301 (Tex. App.—Houston [1st Dist.] 1997, pet. ref'd). In the trial court, Fajardo did not object to his sentence or otherwise argue that his sentence violated his constitutional rights.He therefore failed to preserve this alleged error.See Noland, 264 S.W.3d at 151; Wynn, 219 S.W.3d at 61; Solis, 945 S.W.2d at 301.
Relying on Meadoux v. State, 325 S.W.3d 189, 193 n.5 (Tex. Crim. App. 2010), Fajardo argues that he is entitled to raise his cruel-and-unusual-punishment argument for the first time on appeal. This Court has repeatedly rejected that argument, as has our sister court. See Farris v. State, No. 01-11-00942-CR, 2012 WL 1379668, at *3 (Tex. App.—Houston [1st Dist.] Apr. 19, 2012, no. pet. h.) (mem. op., not designated for publication); Quezada v. State, No. 01-11-00262- CR, 2011 WL 6015698, at *1 (Tex. App.—Houston [1st Dist.] Dec. 1, 2011, pet. ref'd) (mem. op., not designated for publication); Williams v. State, No. 14-11-00139-CR, 2011 WL 6287972, at *2 (Tex. App.—Houston [14th Dist.] Dec. 15, 2011, pet. ref'd)(mem. op., not designated for publication);Wilson v. State, No. 14-11-00555-CR, 2011 WL 5006059, at *1 (Tex. App.—Houston [14th Dist.] Oct. 20, 2011, pet. ref'd)(mem. op., not designated for publication); see also Ham v. State, 355 S.W.3d 819, 825 (Tex. App.—Amarillo 2011, pet. ref'd).
Fajardowaived his constitutional challenges to the severity of his sentence by failing to raise them before the trial court.
Conclusion
Fajardo failed to preserve an appealable error as to the constitutionality of his sentence, which was within the statutory range of punishment available for the offense he committed. Accordingly, we affirm the trial court's judgment.
Harvey Brown
Justice
Panel consists of Justices Bland, Massengale, and Brown. Do not publish. TEX. R. APP. P. 47.2(b).