## NUMBER 13 - 15 - 00156 - CR COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRIST I - EDINBURG

GABIER GONZALES AKA HARVEY GONZALES AKA JAVIER GONZALES , Appellant,

v. THE STATE OF TEXAS , A ppellee.

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



## MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Rodriguez and Perkes

Memorandum Opinion by Justice Rodriguez Appellant Gabier Gonzales aka Harvey Gonzales aka Javier Gonzales challenges
h is conviction for aggravated robbery, a first

- degree felony. See T EX

. P ENAL C ODE A NN

. § 29.03 (West, Westlaw through 2015 R .S.). By one issue, Gonzales contends that the punishment in this case is cruel and unusual

. We affirm.2 I. B ACKGROUND 1 Pursuant to a plea agreement , Gonzales pleaded guilty to aggravated robbery. On August 27, 2007, the trial court accepted the recommended plea and placed Gonzales
on deferred

- adjudication community supervision for eight years and assessed a $750.00 fine with restitution, if any, to the victim

. On March 19, 2014, t he State filed a motion to revoke Gonzales’s community supervision. At the re vocation hearing, after Gonzales pleaded true to all of t he alleged violations , the trial court found the allegations to be true, adjudicate d Gonzales’s guilt , revoked his co mmunity supervision , and assessed punishment at fifteen years in the Institutional Division of the Texas Department o f Criminal Justice. See id. § 12.32 (a) (West, Westlaw through 2015 R .S.) (“A n individual adjudged guilty of a felony of the first degree shall be punished by imprisonment in the Texas Department of Criminal Justice for l ife or for any term of not more than 99 years or less than 5 years. ”). This appeal followed.
II. C RUEL AND U NUSUAL P UNISHMENT By his sole issue on appeal , Gonzales contends “the sentence imposed by the trial court was disproportionate to the seriousness of the alleged offense, in violation of the Eighth and Fourteenth Amendments of the United States Constitution.” See U.S. C ONST

. amends. VIII, XIV. Gonzales argues that the sentence was excessive and unconstitutional because it (1) made no measurable con tribution to acceptable goals of punishment and was, therefore, a purposeless and needless imposition of pain and

1 As this is a memorandum opinion and the parties are familiar with the facts and all issues of law presented by this case are well settled, we will not recite the facts or the law here except as necessary to advise the parties of the Court's decision and t he basic reasons for it. See T EX

. R. A PP

. P. 47.4.3

suffering; and (2) was grossly out of proportion to the severity of the crime. The State
contends , among other things, that Gonzales waived t his issue because he did not raise
a prope r objection in the trial court. We agree with the State. The Eighth Amendment to the United States Constitution provides that “[e]xcessive bail shall not be required, nor excessive fines, nor cruel and unusual punishment inflicted.”
Id. at amend

. VIII. This right can be waived if a defendant fails to object to his sentence on this basis. Smith v. State , 721 S.W.2d 844, 855 (Tex. Crim. App. 1986) (en banc) ; Noland v. State , 264 S.W.3d 144, 151

– 52 (Tex. App.

— Houston [1st Dist.] 2007, pet. ref'd) ; see T EX

. R. A PP

. P. 33.1(a)(1). To preserve a complaint of dispro portionate sentencing, the criminal defendant must make a timely, specific objection to the trial court or raise the issue in a motion for new trial. Rhoades v. State , 934 S.W.2d 113, 120 (Tex. Crim. App. 1996) (en banc) ; Noland , 264 S.W.3d at 151

– 52; Tre vino v. State , 174 S.W.3d 925, 927

– 28 (Tex. App.

— Co rpus Christi 2005, pet. ref'd); see T EX

. R. A PP

. P. 33.1(a) ; Papillion v. State , 908 S.W.2d 621, 623 (Tex. App.

— Beaumont 1995, no pet.) (holding that a defendant preserved a cruel

- and

- unusual

- punishment issue by timely filing a motion for new trial even though he failed to object at sentencing or request to withdraw his plea). Here, Gonzales did not object whe n the trial court pronounced his sentence and
did not raise the issue in a mot ion for new trial or any other post

- trial motion

. Because Gonzales did not object in the trial court, he has not preserved this issue for our review.
We overrule Gonzales’s sole issue

.4 III

. C ONCLUSION We affirm t he tri al court's judgment.

NELDA V. RODRIGUEZ Justice Do not publish. T EX

. R. A PP

. P . 47.2(b). Delivered and filed the 22nd day of October , 201 5

.