Mario Alberto Rodriguez-Gomez v. State ( 2008 )

Affirmed and Memorandum Opinion filed November 13, 2008

Affirmed and Memorandum Opinion filed November 13, 2008.

In The

Fourteenth Court of Appeals

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NO. 14-08-00002-CR

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MARIO ALBERTO RODRIGUEZ-GOMEZ,

Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 155th District Court

Waller County, Texas

Trial Court Cause No. 06-11-12248

M E M O R A N D U M   O P I N I O N

Appellant, Mario Alberto Rodriguez-Gomez, challenges the sentence assessed following his guilty plea to possession of a controlled substance with intent to deliver.  The trial court assessed punishment as confinement for 20 years.  Appellant contends that (1) the trial court abused its discretion in sentencing him to confinement for five more years than his co-defendant; and (2) the disparate sentences violated the equal protection clauses of the United States Constitution and the Texas Constitution.  We affirm.

Background

On June 25, 2007, appellant and his co-defendant pled guilty in open court to a first-degree felony charge of possession of 400 grams or more of a controlled substance with intent to deliver.  The sentencing hearing for both defendants occurred on November 15, 2007.  After hearing testimony and reviewing pre-sentence investigation reports for both defendants, the trial court sentenced appellant to confinement for 20 years and his co-defendant to confinement for 15 years.  Appellant did not object to his sentence when it was pronounced, and the record does not indicate that a motion for new trial was filed.

Analysis

Appellant challenges the trial court=s decision to sentence him to confinement for 20 years while sentencing his co-defendant to confinement for 15 years, claiming that the evidence is insufficient to support the trial court=s sentencing.  Appellant also challenges the five-year difference between the punishments assessed as violating the equal protection clauses of the United States Constitution and the Texas Constitution. 

I.          Did the Trial Court Abuse Its Discretion by Sentencing Appellant to Longer Confinement Than His Co-Defendant?        

We review a sentence imposed by the trial court for abuse of discretion.  Buerger v. State, 60 S.W.3d 358, 363 (Tex. App.BHouston [14th Dist.] 2001, pet. ref=d) (citing Jackson v. State, 680 S.W.2d 809, 814 (Tex. Crim. App. 1984)).  A trial court does not abuse its discretion unless its decision falls outside the zone of reasonable disagreement.  Santellan v. State, 939 S.W.2d 155, 169 (Tex. Crim. App. 1997) (en banc).  As a general rule, a penalty assessed within the proper punishment range will not be disturbed on appeal.  Buerger, 60 S.W.3d at 363 (citing Jackson, 680 S.W.2d at 814).  Possession of 400 grams or more of cocaine with intent to deliver is punishable by confinement for 15-99 years and a fine of up to $250,000.  See Tex. Health & Safety Code Ann. _ 481.112(f) (Vernon 2003).

As a prerequisite to presenting a complaint for appellate review, the record must show that the complaint was made to the trial court by a timely objection or motion.  Tex. R. App. P. 33.1(a)(1).  An appellant may not assert error pertaining to his sentence or punishment when he failed to object or otherwise raise the error in the trial court.  Mercado v. State, 718 S.W.2d 291, 296 (Tex. Crim. App. 1986) (en banc).  In the trial court, appellant did not raise the arguments he now asserts on appeal.  Because appellant never complained to the trial court by objection or motion about the length of his sentence, he leaves us with nothing to review.  See Mercado, 718 S.W.2d at 296; Tex. R. App. P. 33.1(a)(1).

We overrule appellant=s issue regarding whether the trial court abused its discretion by sentencing him to confinement for five more years than his co-defendant.

II.        Appellant=s Constitutional Claims        

Constitutional claims may be waived by the failure to raise a timely objection in the trial court.  Broxton v. State, 909 S.W.2d 912, 918 (Tex. Crim. App. 1995) (en banc).  An appellant waives his equal protection complaint about sentencing by failing to object in the trial court.  Robinson v. State, 906 S.W.2d 534, 536 (Tex. App.BTyler 1995, no pet.) (citing Thomas v. State, 723 S.W.2d 696, 700 (Tex. Crim. App. 1986) (en banc)); see also Tex. R. App. P. 33.1(a)(1).

Appellant made no objection before the trial court to the length of his prison sentence.  Because appellant failed to timely object, he did not preserve his equal protection claims and therefore leaves us with nothing to review.  See Broxton, 909 S.W.2d at 918; Robinson, 906 S.W.2d at 536; Tex. R. App. P. 33.1(a)(1).

We overrule appellant=s issue regarding violation of his federal and state equal protection rights.

Conclusion

The trial court=s judgment is affirmed.

/s/        William J. Boyce

Justice

Judgment rendered and Memorandum Opinion filed November 13, 2008.

Panel consists of Justices Yates, Seymore, and Boyce.

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