COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-09-439-CR
CAYETANO MARINO CASAS APPELLANT
V.
THE STATE OF TEXAS STATE
------------
FROM CRIMINAL DISTRICT COURT NO. 2 OF TARRANT COUNTY
------------
MEMORANDUM OPINION 1
------------
In one issue, appellant Cayetano Marino Casas appeals his twenty-five year
sentence as unconstitutionally disproportionate to his commission of the first-degree
felony offense of aggravated assault with a deadly weapon on a family member. 2
W e affirm.
1
See Tex. R. App. P. 47.4.
2
See Tex. Penal Code Ann. § 22.02(b)(1) (Vernon Supp. 2009).
Appellant entered an open guilty plea to aggravated assault with a deadly
weapon on a family member. 3 The trial court sentenced him to twenty-five years’
confinement. No motion for new trial appears in the clerk’s record, and no other
document filed in the trial court includes appellant’s contention that he received
disproportionate punishment. 4 On appeal, appellant contends that his sentence is
excessive in light of his guilty plea, which he suggests is a mitigating factor, and in
light of his assertion that the provision of the penal code to which he pled guilty was
changed from a second-degree felony to a first-degree felony months before he
committed the crime.
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. Tex. R. App. P. 33.1(a)(1). 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. Tex. R. App. P. 33.1(a)(2).
Even constitutional errors may be forfeited by failing to preserve error. See Curry
v. State, 910 S.W .2d 490, 496 & n.2 (Tex. Crim. App. 1995). Preservation of error
3
Appellant’s indictment alleges that he stabbed a member of his family with
a knife.
4
Appellant waived the appearance of a court reporter, so there is no
reporter’s record.
2
is a systemic requirement. Archie v. State, 221 S.W .3d 695, 698 (Tex. Crim. App.
2007).
A disproportionate sentence claim must be preserved for appellate review.
Kim v. State, 283 S.W .3d 473, 475 (Tex. App.—Fort W orth 2009, pet. ref’d).
Because appellant did not raise his excessive punishment complaint in the trial
court, he has forfeited that complaint on appeal. See Tex. R. App. P. 33.1(a)(1);
Mercado v. State, 718 S.W .2d 291, 296 (Tex. Crim. App. 1986) (“As a general rule,
an appellant may not assert error pertaining to his sentence or punishment where
he failed to object or otherwise raise such error in the trial court.”); Timms v. State,
Nos. 02-09-00306-CR, 02-09-00307-CR, 02-09-00308-CR, 02-09-00309-CR, 2010
W L 1509776, at *1 (Tex. App.—Fort W orth Apr. 15, 2010, pet. filed); Kim, 283
S.W .3d at 475; Thompson v. State, 243 S.W .3d 774, 775–76 (Tex. App.—Fort
W orth 2007, pet. ref’d). Thus, we overrule his sole issue and affirm the trial court’s
judgment.
PER CURIAM
PANEL: LIVINGSTON, C.J.; GARDNER and W ALKER, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: June 24, 2010
3