NUMBERS
13-14-00219-CR
13-14-00220-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
ANDREW DAVID REED a/k/a
JOSHUA REED, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 252nd District Court
of Jefferson County, Texas.
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Benavides and Perkes
Memorandum Opinion by Justice Benavides
By two issues, appellant, Andrew David Reed, appeals his conviction. Reed
complains: (1) the trial court’s sentencing was disproportionate and unreasonable thereby
violating his rights under the Eighth Amendment; and (2) the trial court’s sentencing was
disproportionate thereby violating his state constitutional right under Article I, section 13
of the Texas Constitution. See U.S. CONST. amend. VIII; See TEX. CONST. ART. 1, § 13.
We affirm.
I. BACKGROUND
On April 28, 2010, in trial court cause numbers 08-04699 and 08-04697, Reed
pleaded guilty to the offenses of aggravated robbery, a first-degree felony, which carries
statutory punishment range of a life sentence or not more than ninety-nine years or less
than five years and a fine not to exceed $10,000. See TEX. PENAL CODE ANN. §
12.32(a)(b) (West, Westlaw through Ch. 46 2015 R.S.). The trial court deferred
adjudication and placed Reed on community supervision for a period of ten years and
assessed a fine of $1,000. Subsequently, the State filed a motion to revoke in 2011,
which was dismissed in 2012. The State filed another motion on July 2, 2013, alleging
that Reed had violated several terms of community supervision such as: (1) driving while
intoxicated; (2) public intoxication; (3) using marijuana and phencyclidine; and (4) failing
to comply with program guidelines of the Substance Abuse Felony Punishment Facility
(“SAFPF”). On March 24, 2014, at the hearing for the motion to revoke, Reed pleaded
true to several counts: (1) driving while intoxicated; (2) public intoxication; (3) and (4)
testing positive for marijuana and phencyclidine; (6) and (8) testing positive for marijuana;
and (7) and (9) failing to comply with the rules of SAFPF. As a result, the trial court found
Reed violated the terms of his community supervision on both cases, revoked his
community supervision, found him guilty of the offenses of aggravated robbery, and
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sentenced him to thirty years in the Institutional Division of the Texas Department of
Criminal Justice. The trial court ordered the sentences to run concurrently. This appeal
followed.
II. WAIVER
By his first issue, Reed argues that the trial court’s sentencing was
disproportionate and unreasonable, thereby violating his Eighth Amendment
constitutional right against cruel and unusual punishment. See U.S. CONST. amend. VIII.
By his second issue, Reed also asserts that the trial court’s sentencing was
disproportionate, thereby violating his state constitutional right under Article I, section 13
of the Texas Constitution. See TEX. CONST. ART. 1, § 13. Because these two issues are
related, we will address them together.
A. Preservation of Error
The Eighth Amendment of the United States Constitution provides that “[e]xcessive
bail shall not be required, nor excessive fines, nor cruel and unusual punishment inflicted.”
See U.S. CONST. amend. VIII. The Eighth Amendment applies to punishments imposed
by state courts through the Due Process Clause of the Fourteenth Amendment. Id.
amend. XIV. This right—like every constitutional or statutory right—can be waived by a
“failure to object.” Smith v. State, 721 S.W.2d 844, 855 (Tex .Crim. App. 1986); Kim v.
State, 283 S.W.3d 473, 475 (Tex. App.—Fort Worth 2009, pet. ref’d); Noland v. State,
264 S.W.3d 144, 151–52 (Tex. App.—Houston [1st Dist.] 2007, pet. ref'd) (concluding
that by failing to object, the appellant did not preserve an argument that the sentence was
grossly disproportionate to offense). To preserve an error for appellate review, a party
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must present a timely objection to the trial court, state the specific grounds for the
objection, and obtain a ruling. TEX. R. APP. P. 33.1(a); Trevino v. State, 174 S.W.3d 925,
927 (Tex. App.—Corpus Christi 2005, pet. ref'd). As a general rule, an appellant may
not complain of an error pertaining to his sentence or punishment if he has failed to object
or otherwise raise error in the trial court. Mercado v. State, 718 S.W.2d 291, 296 (Tex.
Crim. App. 1986); see Quintana v. State, 777 S.W.2d 474, 479 (Tex. App.—Corpus
Christi 1989, pet. ref’d) (holding defendant waived cruel and unusual punishment by
failing to object); cf. Papillion v. State, 908 S.W.2d 621, 623 (Tex. App.—Beaumont 1995,
no pet.) (holding defendant preserved issue by timely filing a motion for new trial even
though he failed to object at sentencing or request to withdraw his plea). However, “a
party is not required to make a contemporaneous objection to the imposition of an illegal
sentence. Thus, an appellate court that otherwise has jurisdiction over a criminal
conviction may always notice and correct an illegal sentence.” Trevino, 174 S.W.3d at
n. 4 (“A sentence outside the maximum or minimum range of punishment is unauthorized
by law and therefore illegal.”) (internal citations omitted).
B. Discussion
Here, Reed never raised any complaint in the trial court regarding his sentence,
nor did Reed complain of the sentence in any post-trial motion. See Papillion, 908 S.W.2d
at 623. Instead, Reed raises this complaint for the first time on appeal. We hold that
Reed has failed to preserve this issue for our review. Quintana, 777 S.W.2d at 479. As
a result, we overrule his two issues.
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III. CONCLUSION
We affirm the trial court’s judgments.
GINA M. BENAVIDES,
Justice
Do not publish.
TEX. R. APP. P. 47.2 (b).
Delivered and filed the
30th day of July, 2015.
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