COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 02-11-00102-CR

JOSE L. PEREZ APPELLANT

V.

THE STATE OF TEXAS STATE

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FROM THE 297TH DISTRICT COURT OF TARRANT COUNTY

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MEMORANDUM OPINION1

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Appellant Jose L. Perez was indicted on one count of aggravated sexual 

assault of a child and one count of indecency with a child by contact. He was 

then reindicted on two counts of aggravated sexual assault of a child and two 

counts of indecency with a child by contact. The State later waived counts two 

and four, leaving one count of aggravated sexual assault of a child and one count 

of indecency with a child by contact. The complainant was Appellant’s daughter.

 

1See Tex. R. App. P. 47.4.
2

Appellant’s first trial resulted in a mistrial when the jury could not reach a 

verdict on either count. In the second trial, the jury found Appellant guilty of both 

counts and assessed punishment at thirty-eight years’ confinement on the 

aggravated sexual assault conviction and twelve years’ confinement on the 

indecency with a child conviction. The State filed a motion requesting that any 

sentences be stacked. Appellant’s attorney objected, stating that “we oppose the 

motion based on the fact that the jury has the discretion of awarding a wide 

range of punishment, so we feel it’s in their purview that they would be able to 

assess what they feel would be the appropriate amount of time in this matter.” 

The trial court stacked the sentences, sentencing Appellant to confinement for a 

total of fifty years.2

Appellant filed a motion for new trial on the ground that the verdict was 

“contrary to the law and the evidence.” The motion was overruled by operation of 

law.

In his first issue, Appellant argues that the trial court’s stacking of the 

sentences for a total of fifty years’ confinement resulted in an excessive and 

disproportionate punishment for the offenses of which he was convicted. The 

 

2See Tex. Penal Code Ann. § 3.03(b)(2) (West Supp. 2011) (allowing 

stacking of sentences if accused is convicted of more than one listed offense 

arising out of same criminal episode during which complainant was younger than 

seventeen years of age; listed offenses include online solicitation of a minor, 

sexual performance of a child, prohibited sexual conduct, continuous sexual 

abuse of a child, indecency with a child, sexual assault, and aggravated sexual 

assault).
3

State argues that Appellant failed to preserve his complaint because he did not 

raise it when his sentences were imposed or in his motion for new trial. Although 

a criminal defendant often has no opportunity to object to a sentence he believes 

is excessive or disproportionate, in the case now before this court, Appellant was 

given the opportunity to object before the trial court imposed the stacked 

sentences. Before the jury returned its verdict on punishment, the State asked 

the trial court to stack the sentences when they were imposed. Appellant was 

given the opportunity to object at that time. He did object, but not on the grounds 

raised on appeal. Rather, he objected that the decision to stack the sentences 

interfered with the jury’s authority to determine the appropriate length of 

sentence. He argued that the jury had the authority, after hearing all the 

evidence, to determine how long Appellant should be imprisoned. When the trial 

court stacked the sentences, the trial court essentially replaced the jury’s

determination with its own. Appellant's objection below is not an objection that 

the sentence is excessive or disproportionate.

The complaint made on appeal must comport with the complaint made in 

the trial court or the error is forfeited.3 That is, the complaint must be “essentially 

 

3

Lovill v. State, 319 S.W.3d 687, 691–92 (Tex. Crim. App. 2009) (“A 

complaint will not be preserved if the legal basis of the complaint raised on 

appeal varies from the complaint made at trial.”); Pena v. State, 285 S.W.3d 459, 

464 (Tex. Crim. App. 2009) (“Whether a party’s particular complaint is preserved 

depends on whether the complaint on appeal comports with the complaint made 

at trial.”).
4

the same.”4 To determine whether the complaint on appeal comports with that 

made at trial, we consider the context in which the complaint was made and the 

parties’ shared understanding at that time.5 Because Appellant’s issue on appeal 

does not comport with his objections below, he has failed to preserve his 

complaint. We therefore overrule Appellant’s first issue.

In his second issue, Appellant argues that Texas Penal Code section

3.03(b)(2) and Texas Code of Criminal Procedure article 21.246are 

unconstitutional as applied to him. To preserve a complaint for our review, a 

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.7 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.8 Specifically, a complaint that a statute is unconstitutional as applied to 

 

4Clarke v. State, 270 S.W.3d 573, 580–83 (Tex. Crim. App. 2008).

5Resendez v. State, 306 S.W.3d 308, 313 (Tex. Crim. App. 2009); Pena, 

285 S.W.3d at 464.

6

Tex. Code Crim. Proc. Ann. art. 21.24 (West 2009) (allowing joinder of 

offenses arising out of same criminal episode).

7

Tex. R. App. P. 33.1(a)(1); Lovill, 319 S.W.3d at 691–92.

8

Tex. R. App. P. 33.1(a)(2); Mendez v. State, 138 S.W.3d 334, 341 (Tex. 

Crim. App. 2004).
5

the defendant must be preserved by raising it in the trial court.9 Because 

Appellant failed to preserve his complaint for our review by first raising it in the 

trial court, we overrule his second issue.

Having overruled both issues on appeal, we affirm the trial court’s

judgment.

LEE ANN DAUPHINOT

JUSTICE

PANEL: DAUPHINOT, MEIER, and GABRIEL, JJ.

DO NOT PUBLISH

Tex. R. App. P. 47.2(b)

DELIVERED: January 26, 2012

 

9Curry v. State, 910 S.W.2d 490, 496 (Tex. Crim. App. 1995).