Emelio Palacio v. State ( 2015 )


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  • Affirmed and Opinion Filed March 27, 2015
    In The
    Court of Appeals
    Fifth District of Texas at Dallas
    No. 05-14-00150-CR
    No. 05-14-00151-CR
    EMELIO PALACIO, Appellant
    V.
    THE STATE OF TEXAS, Appellee
    On Appeal from the Criminal District Court No. 5
    Dallas County, Texas
    Trial Court Cause Nos. F12-34223-L, F13-31254-L
    MEMORANDUM OPINION
    Before Justices Francis, Lang-Miers, and Whitehill
    Opinion by Justice Francis
    Emelio Palacio appeals from his aggravated robbery and possession of methamphetamine
    convictions. In three issues, he contends the trial court erred when it failed to conduct a separate
    punishment hearing after adjudicating his guilt and the sentences violate the United States and
    Texas constitutions. We affirm the trial court’s judgments.
    In June 2013, appellant waived a jury and pleaded guilty to aggravated robbery with a
    deadly weapon, a firearm. The trial court deferred adjudication of guilt, placed appellant on
    community supervision for eight years, and assessed a $1,000 fine. The State later moved to
    adjudicate guilt, alleging appellant violated several conditions of his community supervision
    including an October 2013 possession of methamphetamine offense. Appellant pleaded true to
    the allegations at the hearing on the motion.            The trial court found the allegations true,
    adjudicated appellant guilty of aggravated robbery and sentenced him to twenty-five years in
    prison.
    At the same hearing, appellant waived a jury and pleaded guilty to possession of
    methamphetamine in an amount of one gram or more but less than four grams. The trial court
    found appellant guilty and assessed punishment at five years in prison.
    In his first issue, appellant asserts the trial court did not “allow” him an opportunity to
    have a proper sentencing hearing after adjudicating him guilty of aggravated robbery. The State
    responds that appellant has waived appellate review and alternatively, the trial court properly
    sentenced him after adjudicating his guilt.
    Appellant was entitled to a punishment hearing after the adjudication of his guilt. See
    Vidaurri v. State, 
    49 S.W.3d 880
    , 885 (Tex. Crim. App. 2001). However, appellant’s right to a
    separate punishment hearing is a statutory right that can be waived. See 
    id. at 886.
    Appellant did not
    complain about the lack of a separate punishment hearing either at the time he was adjudicated guilty
    or in a motion for new trial. See TEX. R. APP. P. 33.1(a)(1); Castaneda v. State, 
    135 S.W.3d 719
    ,
    723 (Tex. App.—Dallas 2003, no pet.).
    Moreover, the record reflects appellant presented punishment evidence in both cases. See
    Hardeman v. State, 
    1 S.W.3d 689
    , 691 (Tex. Crim. App. 1999). During the hearing, appellant
    testified and said he had a “drug problem,” and read a letter he wrote to the trial judge asking for
    “rehab.” Appellant also presented testimony from his mother, who asked the trial judge to get
    appellant “some help.” We overrule his first issue.
    In his second and third issues, appellant contends the sentences are grossly
    disproportionate to the offenses and inappropriate to the offender, in violation of the United
    ‐2‐
    States and Texas constitutions. Appellant asserts he has a “serious drug addiction” and needs
    treatment, not incarceration. Appellant argues that because no evidence shows he was a violent
    person or had a lengthy criminal history, he should have received treatment. The State responds
    that appellant failed to preserve his complaints for appellate review and the trial court properly
    exercised its discretion in sentencing appellant in these cases. The State notes that during the
    hearing, appellant admitted having robbed his victim at gunpoint.
    Appellant did not complain about the sentences either at the time they were imposed or in
    motions for new trial. See TEX. R. APP. P. 33.1(a)(1); Castaneda v. 
    State, 135 S.W.3d at 723
    .
    Thus, he has not preserved this issue for appellate review.
    Moreover, punishment assessed within the statutory range for an offense is neither
    excessive nor unconstitutionally cruel or unusual. Kirk v. State, 
    949 S.W.2d 769
    , 772 (Tex.
    App.—Dallas 1997, pet. ref’d); see also Jackson v. State, 
    680 S.W.2d 809
    , 814 (Tex. Crim. App.
    1984). Aggravated robbery with a deadly weapon is a first-degree felony, with a punishment
    range of imprisonment of five to ninety-nine years or life and an optional fine not to exceed
    $10,000. See TEX. PEN. CODE ANN. §§ 12.32, 29.03(b). Appellant’s twenty-five-year sentence
    is within the statutory range. Likewise, appellant’s five-year sentence is within the punishment
    range for the possession of methamphetamine conviction. Possession of methamphetamine in an
    amount of one gram or more but less than four grams is a third-degree felony offense with
    punishment of imprisonment for two to ten years and an optional fine not to exceed $10,000.
    See TEX. PENAL CODE ANN. § 12.24; TEX. HEALTH & SAFETY CODE ANN. § 481.115(c).
    ‐3‐
    We overrule appellant’s two issues. We affirm the trial court’s judgments.
    Do Not Publish
    TEX. R. APP. P. 47
    140150F.U05
    /Molly Francis/
    MOLLY FRANCIS
    JUSTICE
    ‐4‐
    Court of Appeals
    Fifth District of Texas at Dallas
    JUDGMENT
    EMELIO PALACIO, Appellant                            Appeal from the Criminal District Court
    No. 5 of Dallas County, Texas (Tr.Ct.No.
    No. 05-14-00150-CR         V.                        F12-34223-L).
    Opinion delivered by Justice Francis,
    THE STATE OF TEXAS, Appellee                         Justices Lang-Miers and Whitehill
    participating.
    Based on the Court’s opinion of this date, the trial court’s judgment adjudicating guilt is
    AFFIRMED.
    Judgment entered March 27, 2015.
    ‐5‐
    Court of Appeals
    Fifth District of Texas at Dallas
    JUDGMENT
    EMELIO PALACIO, Appellant                          Appeal from the Criminal District Court
    No. 5 of Dallas County, Texas (Tr.Ct.No.
    No. 05-14-00151-CR       V.                        F13-31254-L).
    Opinion delivered by Justice Francis,
    THE STATE OF TEXAS, Appellee                       Justices Lang-Miers and Whitehill
    participating.
    Based on the Court’s opinion of this date, the trial court’s judgment is AFFIRMED.
    Judgment entered March 27, 2015.
    ‐6‐