IN THE

TENTH COURT OF APPEALS

No. 10-12-00041-CR

MANUEL GARCIA,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 40th District Court

Ellis County, Texas

Trial Court No. 35,813CR

MEMORANDUM OPINION

In two issues, appellant, Manuel Lerma Garcia, challenges the punishment 

assessed for his conviction for unlawful possession of a controlled substance in an 

amount less than one gram, a state-jail felony. See TEX. HEALTH & SAFETY CODE ANN. § 

481.115(b) (West 2010). We affirm.

I. BACKGROUND

On March 19, 2011, Kristie Brewer of the Ellis County Sheriff’s Office received a 

9-1-1 call referencing a gold-colored truck parked outside the caller’s residence. The 
Garcia v. State Page 2

caller stated that she believed that the driver of the truck was “doing drugs inside the 

vehicle.” Brewer dispatched officers to investigate the scene. Captain Brad Norman 

and Deputy David Gardner of the Ellis County Sheriff’s Office responded to the scene. 

Upon arrival, Captain Norman and Deputy Gardner observed a “brownish-gold” 

colored Dodge truck parked off the roadway in front of 650 FM 983. The officers also 

noticed that appellant was the only occupant of the truck. Captain Norman testified 

that appellant appeared to be either asleep or passed out. To get appellant’s attention, 

Captain Norman tapped on the driver’s side window with his hand and then his 

flashlight. Eventually, appellant awoke. 

Officers used their flashlights to visually search the inside of the truck. Captain 

Norman noticed that both of appellant’s “hands were clenched shut down on top of the 

seat beside his legs.” For safety reasons, appellant was ordered to show his hands. 

Appellant did not initially comply with the officers’ requests. However, appellant later 

decided to open the door of the truck. In doing so, appellant opened his right hand, 

and Captain Norman saw “something fall onto the seat.” This object was initially 

identified as a “small off-white colored rocklike substance,” which Captain Norman 

believed to be crack cocaine. Drew Fout, a forensic scientist with the Texas Department 

of Public Safety, testified that the substance amounted to 0.05 grams of cocaine. 

Appellant was subsequently arrested. Pursuant to an inventory search, officers also 

found a crack pipe inside the truck.1

 

1 The State also introduced recordings of telephone calls that appellant made to his wife and 

mother from jail. In these calls, appellant admitted that he had the cocaine. In addition, though he 
Garcia v. State Page 3

At the conclusion of the guilt-innocence phase, the jury found appellant guilty of 

the charged offense. During the punishment phase, the State introduced evidence of 

appellant’s prior convictions for unauthorized use of a motor vehicle, taking a weapon 

away from a peace officer, assault, failure to identify as a fugitive from justice, evading 

arrest, and driving with a suspended license. Ultimately, the jury assessed punishment 

at 500 days’ confinement in a state jail. This appeal followed.

II. ANALYSIS

On appeal, appellant contends that his punishment is disproportionate to the 

crime committed and that it violates the Eighth Amendment to the United States 

Constitution and article I, section 13 of the Texas Constitution. See U.S. CONST. amend. 

VIII; see also TEX. CONST. art. 1, § 13. 

A disproportionate-sentence claim must be preserved for appellate review. See 

TEX. R. APP. P. 33.1(a)(1); Rhoades v. State, 934 S.W.2d 113, 120 (Tex. Crim. App. 1996) 

(noting that constitutional rights, including the right to be free from cruel and unusual 

punishment, may be waived); Mercado v. State, 718 S.W.2d 291, 296 (Tex. Crim. App. 

1986) (en banc); see also 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.”). To preserve a complaint for review, a 

 

initially denied possessing cocaine at trial, appellant acknowledged on cross-examination that he did, in 

fact, possess cocaine on the night in question.
Garcia v. State Page 4

party must have presented to the trial court a timely request, objection, or motion that 

states the specific grounds for the desired ruling if they are not apparent from the 

context of the request, objection, or motion. TEX. R. APP. P. 33.1(a)(1); Landers v. State, 

402 S.W.3d 252, 254 (Tex. Crim. App. 2013); Sample v. State, 405 S.W.3d 295, 300 (Tex. 

App.—Fort Worth 2013, pet. ref’d). Further, the trial court must have ruled on the 

request, objection, or motion, either expressly or implicitly, or the complaining party 

must have objected to the trial court’s refusal to rule. TEX. R. APP. P. 33.1(a)(2); Pena v. 

State, 353 S.W.3d 797, 807 (Tex. Crim. App. 2011). 

At the sentencing hearing, appellant did not assert his disproportionate-sentence 

claim. Moreover, appellant did not file a motion for new trial or otherwise present his 

objection to the imposed sentence. As such, appellant has forfeited this complaint. See

TEX. R. APP. P. 33.1(a)(1); Clark v. State, 365 S.W.3d 333, 339 (Tex. Crim. App. 2012); see 

also Noland, 264 S.W.3d at 151-52.

And even if appellant had preserved this complaint, it lacks merit. Appellant’s 

500-day sentence falls within the statutory range for his offense. See TEX. HEALTH &

SAFETY CODE ANN. § 481.115(b) (providing that unlawful possession of a controlled 

substance in an amount less than one gram is a state-jail felony); see also TEX. PENAL 

CODE ANN. § 12.35(a) (West 2011) (stating that the punishment range for a state-jail 

felony is “confinement in a state jail for any term of not more than two years or less 

than 180 days”). The trial court’s discretion to impose any punishment within the 

prescribed range is essentially “unfettered.” Ex parte Chavez, 213 S.W.3d 320, 323 (Tex. 

Crim. App. 2006). Punishment imposed within the statutory range is generally not 
Garcia v. State Page 5

subject to challenge for excessiveness. See Dale v. State, 170 S.W.3d 797, 799 (Tex. 

App.—Fort Worth 2005, no pet.) (“Generally, punishment assessed within the statutory 

limits is not excessive, cruel, or unusual punishment.”). Further, nothing in the record 

shows that appellant’s punishment, in light of his criminal history and the facts 

surrounding the charged offense, was grossly disproportionate to the crime so as to 

violate the Eighth Amendment of United States Constitution or article 1, section 13 of 

the Texas Constitution. See U.S. CONST. amend. VIII; TEX. CONST. art. 1, § 13; Solem v. 

Helm, 463 U.S. 277, 284, 103 S. Ct. 3001, 3006, 77 L. Ed. 2d 637 (1983); McGruder v. 

Puckett, 954 F.2d 313, 315-17 (5th Cir. 1992) (setting forth the analysis for proportionality 

of punishment); Moore v. State, 54 S.W.3d 529, 542 (Tex. App.—Fort Worth 2001, pet. 

ref’d). Based on the foregoing, we overrule appellant’s issues on appeal. 

III. CONCLUSION

We affirm the judgment of the trial court.

AL SCOGGINS

Justice

Before Chief Justice Gray,

Justice Davis, and

Justice Scoggins

Affirmed

Opinion delivered and filed April 10, 2014

Do not publish

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