NUMBER 13-15-00156-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG 

 

GABIER GONZALES AKA HARVEY

GONZALES AKA JAVIER GONZALES, Appellant,

v.

THE STATE OF TEXAS, Appellee.

 

On appeal from the 36th District Court 

of San Patricio 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 

his conviction for aggravated robbery, a first-degree felony. See TEX. PENAL CODE ANN. 

§ 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.
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I. BACKGROUND1

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, the State filed a motion to 

revoke Gonzales’s community supervision. At the revocation hearing, after Gonzales 

pleaded true to all of the alleged violations, the trial court found the allegations to be true, 

adjudicated Gonzales’s guilt, revoked his community supervision, and assessed 

punishment at fifteen years in the Institutional Division of the Texas Department of 

Criminal Justice. See id. § 12.32(a) (West, Westlaw through 2015 R.S.) (“An individual 

adjudged guilty of a felony of the first degree shall be punished by imprisonment in the 

Texas Department of Criminal Justice for life or for any term of not more than 99 years or 

less than 5 years.”). This appeal followed.

II. CRUEL AND UNUSUAL PUNISHMENT

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. CONST. 

amends. VIII, XIV. Gonzales argues that the sentence was excessive and 

unconstitutional because it (1) made no measurable contribution 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 the basic reasons for it. See TEX. R. APP. 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 this issue because he did not raise 

a proper 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 TEX. R. APP. P. 33.1(a)(1). To preserve a complaint of disproportionate 

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; Trevino v. State, 174 S.W.3d 

925, 927–28 (Tex. App.—Corpus Christi 2005, pet. ref'd); see TEX. R. APP. 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 when the trial court pronounced his sentence and 

did not raise the issue in a motion 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.
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III. CONCLUSION

We affirm the trial court's judgment.

NELDA V. RODRIGUEZ

Justice

Do not publish.

TEX. R. APP. P. 47.2(b).

Delivered and filed the

22nd day of October, 2015.