Jose Nava Benitez v. State ( 2007 )

Affirmed and Memorandum Opinion filed June 26, 2007

Affirmed and Memorandum Opinion filed June 26, 2007.

In The

Fourteenth Court of Appeals

_______________

NO. 14-06-00220-CR

_______________

JOSE NAVA BENITEZ, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 209th District Court

Harris County, Texas

Trial Court Cause No. 1042895

M E M O R A N D U M   O P I N I O N

Jose Nava Benitez appeals a conviction for theft from an elderly individual^[1] on the grounds that: (1) the sentence imposed violates his due process rights and constitutes cruel and unusual punishment; and (2) the trial court abused its discretion by failing to sua sponte order appellant=s guilty plea withdrawn.  We affirm.

Appellant=s first and second issues contend that his twenty year sentence is grossly disproportionate to the convicted offense, thereby violating his constitutional rights to due process and to be free from cruel and unusual punishment.  To preserve a complaint for appellate review, a party must have presented the trial court with a timely request, objection or motion, stating the specific grounds for the ruling desired if those grounds were not apparent from the context.  Tex. R. App. P. 33.1(a).  A party is not excused from the procedural requirement of preserving a complaint at trial because the complaint involves a constitutional right, including the right against cruel and unusual punishment.  Olivas v. State, 202 S.W.3d 137, 144 (Tex. Crim. App. 2006); Rhoades v. State, 934 S.W.3d 113, 120 (Tex. Crim. App. 1996).  In this case, because appellant failed to object to the sentence as violating his constitutional rights in the trial court, his first and second issues present nothing for our review and are overruled.

Appellant=s third issue contends that the trial court abused its discretion by failing to sua sponte order that appellant=s guilty plea be withdrawn due to an involuntary plea because the pre-sentence investigation report (APSI@) showed that appellant was not guilty of the charged offenses in that he was unable to read and write English and did not understand the papers that his co-defendant had asked him to sign in the course of the offense.  In support of this contention, appellant cites the statement he submitted as part of the PSI.  However, appellant=s brief does not cite any legal authority or facts in his PSI statement that would suggest that appellant was uninformed or misinformed about his plea or that it was otherwise involuntary. In addition, although his PSI statement indicates that appellant did not understand the papers he was signing, it states that he did understand that what he was doing was cheating the complainant.  Lastly, appellant cites no cases holding that a trial court abused its discretion by failing to order a guilty plea withdrawn in a jury-waived plea proceeding, as this was.  Because it thus fails to demonstrate that the trial court abused its discretion in failing to order appellant=s guilty plea withdrawn, appellant=s third issue is

overruled, and the judgment of the trial court is affirmed.

/s/        Richard H. Edelman

Justice

Judgment rendered and Memorandum Opinion filed June 26, 2007.

Panel consists of Chief Justice Hedges and Justices Fowler and Edelman.

Do not publish C Tex. R. App. P. 47.2(b).

---

^[1]           After appellant entered a guilty plea and a pre-sentence investigation report was filed, the court found appellant guilty and sentenced him to twenty years confinement.