Opinion filed May 18, 2023

In The

Eleventh Court of Appeals __________

No. 11-21-00196-CR

__________

REYDESEL MARQUEZ-ORTIZ, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 161st District Court

Ector County, Texas

Trial Court Cause No. B-18-0049-CR

M E M O R A N D U M O P I N I O N

This is an appeal from an eight-year sentence assessed after the trial court 

adjudicated Appellant, Reydesel Marquez-Ortiz, guilty and revoked his deferred 

adjudication community supervision. Appellant challenges his sentence in two 

issues. He requests that we reverse his conviction and sentence and remand the case 

for a new punishment hearing. We affirm. 
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Background Facts

In January 2018, the State charged Appellant by indictment with the thirddegree felony offense of evading arrest with a motor vehicle. See TEX. PENAL CODE 

ANN. § 38.04(a), (b)(2)(A) (West 2016). In January 2019, Appellant pleaded guilty 

pursuant to a plea bargain agreement. The trial court deferred a finding of guilt and 

placed Appellant on deferred adjudication community supervision for a term of two 

years. 

The term of Appellant’s community supervision was set to expire on 

October 23, 2020. But on October 13, 2020, the State filed a motion to adjudicate 

his guilt, alleging that Appellant had committed four violations of the terms 

and conditions of his community supervision. Two conditions of Appellant’s 

community supervision were (1) that he not commit any additional offenses and 

(2) that he be at his residence from 10:00 p.m. to 6:30 a.m. The alleged violations 

were that on October 5, 2020, Appellant (1) failed to be at his residence by his 

10:00 p.m. curfew, (2) committed the offense of evading arrest with a motor vehicle,

and (3) committed two “Duty on Striking Fixture/Highway Landscape” offenses. 

See PENAL § 38.04(a); TEX. TRANSP. CODE ANN. § 550.025(a) (West 2021).

The testimony at the adjudication hearing showed that on October 5, 2020, at 

approximately 2:35 a.m., Deputy Keith Hinojos with the Ector County Sheriff’s 

Office heard a call for service broadcasted over his radio. The call detailed that a 

dark-colored, single cab Dodge Ram was involved in a nearby hit-and-run. Deputy 

Hinojos saw a vehicle matching the given description traveling southbound. Deputy 

Hinojos testified that, after he activated his emergency lights, the vehicle proceeded 

to turn at an intersection and begin traveling “in excess of 90 miles per hour.” 
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Deputy Hinojos pursued the vehicle for about fifteen seconds before it “struck an 

unknown object” and flipped.

Deputy Hinojos exited his patrol vehicle and went to check on the driver of 

the crashed vehicle. Deputy Hinojos testified that no one was in the vehicle but that 

he “heard some commotion in the bushes nearby.” Deputy Hinojos saw a man in a 

white T-shirt running through the bushes. Deputy Hinojos testified that the man 

continued to run despite Deputy Hinojos ordering him to stop. Deputy Hinojos ran 

after the man, tackled him, and detained him. Deputy Hinojos identified the man as 

Appellant. He arrested Appellant for evading arrest with a motor vehicle.1

 

Appellant testified at the adjudication hearing. Appellant testified that he was 

spending time with his family at his grandmother’s house, lost track of time, and was 

on his way home when he was arrested. Appellant testified that he was remorseful 

for his actions and requested that he be able to remain on community supervision so 

that he could work to support his family.

The State recommended that the trial court sentence Appellant to seven years 

in the Institutional Division of the Texas Department of Criminal Justice. The trial 

court found the allegations that Appellant violated his curfew and evaded arrest with

a motor vehicle to be true. The trial court assessed Appellant’s punishment at 

confinement in the Institutional Division of the Texas Department of Criminal 

Justice for a term of eight years and a fine of $2,000. 

Analysis

In his first issue, Appellant contends that the trial court abused its discretion 

by failing to consider the objectives of Section 1.02 of the Texas Penal Code when 

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Deputy Hinojos was unable to determine whether Appellant was the driver involved in the hitand-run.
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sentencing Appellant. See PENAL § 1.02 (West 2021). The State asserts that 

Appellant waived the issue by failing to object on that basis at either sentencing or 

in a motion for new trial. Alternatively, the State contends that the trial court did 

not abuse its discretion by sentencing Appellant within the prescribed punishment 

range. 

We first observe that a trial court’s decision regarding what sentence to 

impose is a “normative process, not intrinsically factbound.” Ex parte Chavez, 213 

S.W.3d 320, 323 (Tex. Crim. App. 2006). “Subject only to a very limited, 

‘exceedingly rare,’ and somewhat amorphous Eighth Amendment grossdisproportionality review, a punishment that falls within the legislatively prescribed 

range, and that is based upon the sentencer’s informed normative judgment, is 

unassailable on appeal.”2 Id. at 323–24 (footnote omitted); see State v. Simpson, 

488 S.W.3d 318, 323 (Tex. Crim. App. 2016) (“[T]his Court has traditionally held 

that punishment assessed within the statutory limits, including punishment enhanced 

pursuant to a habitual-offender statute, is not excessive, cruel, or unusual.”).

We begin with the threshold matter of whether Appellant preserved his first 

issue for appeal. To preserve error for appellate review, the record must show that 

“the complaint was made to the trial court by a timely request, objection, or motion 

that: (A) stated the grounds for the ruling that the complaining party sought from the 

trial court with sufficient specificity to make the trial court aware of the complaint, 

unless the specific grounds were apparent from the context.” TEX. R.

APP. P. 33.1(a)(1)(A). To preserve alleged error relating to excessive punishment, 

a defendant must make a timely request, objection, or motion to the trial court. 

2

Since Appellant is not making an Eighth Amendment claim that his sentence was grossly 

disproportionate, it would appear that there is a question as to whether his claims are cognizable in light 

of Chavez’s use of the term “unassailable.”
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Mercado v. State, 718 S.W.2d 291, 296 (Tex. Crim. App. 1986); Casteneda v. State, 

135 S.W.3d 719, 723 (Tex. App.—Dallas 2003, no pet.); see Burt v. State, 396

S.W.3d 574, 577 (Tex. Crim. App. 2013) (“In some instances, an appellant may 

preserve a sentencing issue by raising it in a motion for new trial.”); Vidaurri v. 

State ̧ 49 S.W.3d 880, 886 (Tex. Crim. App. 2001) (failure to object at the time of 

sentencing or in a posttrial motion waives error for appeal); see also Nieto v. State, 

No. 11-20-00163-CR, 2022 WL 2252424, at *1 (Tex. App.—Eastland June 23, 

2022, pet. ref’d) (mem. op., not designated for publication). 

Appellant did not assert that the sentence imposed by the trial court violated 

Section 1.02 at the adjudication hearing or in a motion for new trial. A complaint 

that a sentence violates Section 1.02 must be presented to the trial court in order to 

preserve the complaint for appellate review. Nieto, 2022 WL 2252424, at *1–2; 

Neal v. State, No. 05-19-00699-CR, 2020 WL 3958192, at *3 (Tex. App.—Dallas 

July 13, 2020, no pet.) (mem. op., not designated for publication); Littlebird v. State, 

No. 05-17-00709-CR, 2018 WL 2926811, at *2 (Tex. App.—Dallas June 7, 2018, 

no pet.) (mem. op., not designated for publication); Thornton v. State, No. 05-16-

00565-CR, 2017 WL 1908629, at *4 (Tex. App.—Dallas May 9, 2017, pet. ref’d) 

(mem. op., not designed for publication).

Even if Appellant had preserved the error, his contention is without merit. We 

review a trial court’s determination of punishment for an abuse of discretion. 

Jackson v. State, 680 S.W.2d 809, 814 (Tex. Crim. App. 1984). The general rule is 

that a trial court does not abuse its discretion if the sentence is within the proper 

range of punishment. Id. The range of punishment for a third-degree felony is for 

any term of not more than ten years or less than two years in the Texas Department 

of Criminal Justice. PENAL § 12.34. The trial court sentenced Appellant to a term 
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of eight years. Thus, Appellant’s sentence is within the statutory range for a thirddegree felony. See PENAL § 12.34.

Appellant also asserts that the trial court imposed a sentence that is 

disproportionate3 to Appellant’s original sentence of deferred adjudication for a 

period of two years. This contention is unsupported by authority or the record before 

us. Appellant’s contention “confuses the decision to adjudicate, which [is] based on 

the violations of supervision, with the punishment decision.” See Atchison v. State, 

124 S.W.3d 755, 759 (Tex. App.—Austin 2003, pet. ref’d). The trial court imposed 

an eight-year sentence as punishment for the third-degree felony to which Appellant 

had previously pleaded guilty. 

Appellant further asserts that the trial court’s “real goal” was to punish 

Appellant with a harsh sentence and that the trial court did not consider public 

safety, deterrence, or Appellant’s rehabilitation. See PENAL § 1.02. Appellant was 

originally placed on deferred adjudication community supervision for the offense of

evading arrest in a motor vehicle. Appellant was then placed in the Intensive 

Supervision Program of the Ector County Community Supervision and Corrections 

Department from March 2019 to March 2020 after he tested positive for cocaine 

during his second month of probation. The State filed a motion to adjudicate guilt 

only after Appellant was arrested for evading arrest with a motor vehicle for a second 

time. 

Appellant testified that he “ran” from Deputy Hinojos because he believed 

that he was going to have his community supervision revoked or face potential 

3

Although Appellant asserts that his sentence is disproportionate, he does not contend that the

sentence violates the United States Constitution or the Texas Constitution. Thus, a constitutional analysis 

is beyond our review. However, we find nothing disproportionate in an eight-year sentence for evading 

arrest with a motor vehicle. 
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prison time for breaking his curfew. Appellant also failed to meet with his 

community supervision officer for their scheduled meeting on October 22, 2020. 

Appellant’s explanation for missing the meeting was because he was “trying to stay 

away from jail, knowing that [he] had the warrants” so that he could be there for his 

third child’s birth. 

Based on the crime charged and Appellant’s own admissions, we cannot say 

that the sentence violates Section 1.02’s objectives to prevent the reoccurrence of 

criminal behavior to ensure public safety. See PENAL § 1.02 (1)(A), (C). Moreover, 

incarceration does not necessarily mean that Appellant will be denied the 

opportunity for rehabilitation. See Foster v. State, 525 S.W.3d 898, 911 (Tex. 

App.—Dallas 2017, pet. ref’d). Accordingly, the trial court did not abuse its 

discretion. Appellant’s sentence is within the prescribed statutory range, and it does 

not violate the objectives stated in Section 1.02 of the Texas Penal Code. We 

overrule Appellant’s first issue.

In his second issue, Appellant contends that the trial court failed to consider 

“the good and the bad” of Appellant’s criminal and social history, citing Stringer v. 

State in support of his contention that this failure resulted in his eight-year sentence. 

See Stringer v. State, 276 S.W.3d 95, 96, 101 (Tex. App.—Fort Worth, 2008), aff’d, 

309 S.W.3d 42 (Tex. Crim. App. 2010) (“The statutory provisions require a judge’s 

consideration of a defendant’s entire ‘criminal and social history’—i.e., the good 

and the bad aspects of the defendant’s criminal and social history.”).

Specifically, Appellant contends that the trial court violated Article 37.07, 

Section 3(d) of the Texas Code of Criminal Procedure because it did not reference 

the prepared presentence investigation report (PSI), which “presumably” included 

topics such as Appellant’s family and work history. See TEX. CODE CRIM. PROC.
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ANN. art. 37.07 § 3(d) (West Supp. 2022) (“When the judge assesses the punishment, 

the judge may order a presentence report . . . and after considering the report, and 

after the hearing of the evidence . . . the judge shall forthwith announce the judge’s 

decision in open court as to the punishment to be assessed.”). The State asserts that 

Appellant waived this issue by failing to object at either sentencing or in a motion 

for new trial.

Appellant did not assert that the trial court violated Article 37.07, Section 3(d)

at the adjudication hearing or in a motion for new trial. A complaint that a sentence 

violates Article 37.07, Section 3(d) must be presented to the trial court in order to 

preserve the complaint for appellate review. See Herrera v. State, 599 S.W.3d 64, 

68 (Tex. App.—Dallas 2020, no pet.) (holding that a defendant’s rights involving a 

PSI can be waived by inaction).

Even if Appellant had preserved the error, the record does not support 

Appellant’s contention that the trial court did not consider the “good” information 

contained in the PSI. Notably, the trial court stated on the record that it had reviewed 

the PSI. Further, we note that the “good” information Appellant claims the trial 

court did not consider—his lack of previous criminal history, his family, and his 

work experience—were all mentioned by Appellant in his testimony. Finally, the 

PSI is not included in the record before us.4

 As such, we cannot determine whether 

the PSI contained additional “good” information that was not considered by the trial 

court. See Diaz v. State, No. 11-10-00381-CR, 2012 WL 2978786, at *1 (Tex. 

App.—Eastland July 19, 2012, no pet.) (per curiam) (mem. op., not designated for 

4

“Because the PSI report is deemed ‘confidential’ by law, it is not required to be made part of the 

appellate record and thus is not normally included in that record.” Ibarra v. State, No. 06-21-00013-CR, 

2021 WL 4095255, at *2 n.4 (Tex. App.—Texarkana Sept. 9, 2021, pet. ref’d) (mem. op., not designated 

for publication).
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publication) (citing a legal commentary for the proposition that defense counsel 

should include the PSI in the record if the appellant relies upon it for presenting his 

claim on appeal).

We briefly address Appellant’s contention that the trial court’s focus on the 

“bad” facts of Appellant’s criminal history was due to a misunderstanding of the 

facts surrounding Appellant’s October 5, 2020, evading arrest with a motor vehicle 

offense. Appellant notes that the State asserted in its closing argument that 

Appellant was arrested for the “exact same thing on the PSI that he did before” and 

that the trial court agreed by responding, “Exactly.” While Appellant concedes that 

he was charged with evading arrest in both 2018 and 2020, he argues that the 

“underlying basis” of each offense was different because Appellant’s first evading 

arrest charge was in an attempt to avoid being charged with the possession of an 

illegal substance, while Appellant’s second charge did not involve illegal substances. 

Thus, Appellant asserts, the trial court relied on a misunderstanding of the similarity 

between Appellant’s two evading arrest charges. 

We disagree with Appellant’s interpretation of the trial court’s statement. 

Appellant conceded during his testimony that he committed “essentially, the same 

offense that [he was] already on probation for.” Further, Appellant’s trial counsel 

acknowledged in his closing argument that Appellant “made a mistake doing the 

same thing that he was caught doing the last time.” Thus, we believe the record 

clearly indicates that the “same thing” both parties and the trial court were referring 

to was Appellant’s decision to evade arrest with a motor vehicle, rather than his 

motivations behind his evasions from law enforcement. Appellant’s second issue is 

overruled.

 
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This Court’s Ruling

We affirm the judgment of the trial court. 

JOHN M. BAILEY

CHIEF JUSTICE

May 18, 2023

Do not publish. See TEX. R. APP. P. 47.2(b). 

Panel consists of: Bailey, C.J., 

Trotter, J., and Williams, J.