Gary Wayne Hill v. State ( 2011 )

NUMBER 13-10-00178-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI—EDINBURG
____________________________________________________
GARY WAYNE HILL, Appellant,
v.
STATE OF TEXAS, Appellee.
____________________________________________________
On appeal from the 252nd Judicial District Court
of Jefferson County, Texas
____________________________________________________
MEMORANDUM OPINION
Before Chief Justice Valdez, and Justices Rodriguez and Perkes
Memorandum Opinion by Justice Perkes
Pursuant to a plea bargain, appellant, Gary Wayne Hill, pleaded guilty to
aggravated assault, a second degree felony, and the trial court placed him on five years’
deferred-adjudication community supervision. TEX. PENAL CODE § 22.02 (West Supp.
2010)1. The State filed a motion to revoke appellant’s unadjudicated community
supervision, alleging appellant violated the terms and conditions of his community
supervision. The trial court found appellant guilty of aggravated assault with use or
exhibition of a deadly weapon (firearm), revoked appellant’s unadjudicated community
supervision, and sentenced appellant to sixteen years’ confinement in the Institutional
Division of the Texas Department of Criminal Justice. By two issues, appellant
contends the trial court’s sentencing was constitutionally disproportionate and
unreasonable, thereby violating his constitutional rights under the Eighth Amendment to
the United States Constitution and under Article I, section 13 of the Texas Constitution.
See U. S. CONST. amend. VIII; TEX. CONST. art. I, §13. Appellant further argues that the
court did not consider existing verifiable facts and the mandated factors of article 42.12,
section 3(G) of the Texas Code of Criminal Procedure. See TEX. CODE CRIM. PROC.
ANN. art. 42.12, §3(G) (West 2006). We affirm.
I. BACKGROUND2
On October 20, 2008, the trial court accepted appellant's guilty plea, deferred the
adjudication, set a fine of $1,000.00, and placed him on deferred-adjudication
community supervision for five years. See TEX. CODE CRIM. PROC. ANN. art. 42.12 (West
Supp. 2010). On December 1, 2008, and again on October 12, 2009, the trial court
entered orders amending the terms of community supervision and imposing various
sanctions, including, without limitation, serving time in jail and attending alcoholics
1
We note that the applicable statute is that which existed at the time the crime was committed.
Since subsequent statutory revisions are not pertinent to this appeal, we cite to the current version of the
statute.
2
This case is before this Court on transfer from the Ninth Court of Appeals in Beaumont pursuant
to an order issued by the Supreme Court of Texas. See TEX. GOV'T CODE ANN. § 73.001 (West 2005).
2
anonymous / narcotics anonymous meetings. On January 29, 2010, an administrative
hearing was held, wherein the trial court found that appellant: (1) tested positive for
cocaine at the probation office on December 14, 2009; (2) admitted he handled cocaine
when he took it from his cousin who was attempting to sell it from his house; (3) tested
positive for cocaine again on January 28, 2010; (4) was in arrears in the sum of
$1,000.00; and (5) had not provided any documentation of employment since being
released from a Substance Abuse Felony Punishment Facility (―SAFPF‖) on August 14,
2009. On March 1, 2010, a bench trial was held on the State’s Motion to Revoke
Probation. The trial court found appellant violated the terms of his community
supervision by: (1) failing to work faithfully at suitable employment and provide
verification thereof; and (2) failing to never become intoxicated or be under the influence
of any intoxicating substance. The trial court rendered judgment against appellant, and
this appeal followed.
II. ANALYSIS
Appellant did not make any objections regarding the constitutionality of the
court’s sentence or any other objections during the trial proceeding, and he did not file a
motion for new trial or any other post-verdict motion asserting any constitutional and
statutory complaints.3 To preserve a complaint of disproportionate sentencing, the
defendant must make a timely, specific objection in the trial court or raise the issue in a
motion for new trial. TEX. R. APP. P. 33.1; Heidelberg v. State, 144 S.W.3d 535, 542–43
(Tex. Crim. App. 2004); Quintana v. State, 777 S.W.2d 474, 479 (Tex. App.—Corpus
3
Appellant states in his brief that he ―raised the claim presented on appeal in a post-verdict
motion filed with the trial court, which was denied on November 16, 2009.‖ However, the trial was held on
March 1, 2010, and the court entered its judgment on March 11, 2010. Our review of the record shows
that no post-verdict motion was filed and that no such post-verdict hearing was held in this matter.
3
Christi 1989, pet. ref’d); see also Montemayor v. State, No. 13–10–00292–CR, 2011 WL
1844449, at *3 (Tex. App.—Corpus Christi March 17, 2011, no pet.) (mem. op.) (not
designated for publication). Our law is well-established that almost every right,
constitutional or statutory, may be waived by the failure to object. Broxton v. State, 909
S.W.2d 912, 918 (Tex. Crim. App. 1995); Kim v. State, 283 S.W.3d 473, 475 (Tex.
App.—Fort Worth 2009, pet. ref’d).
Appellant failed to preserve his issues for review on appeal. See Tex. R. App. P.
33.1. Further, even if we were to reach the merits of appellant’s complaints, the
punishment imposed was within the statutory limits. Absent rare exceptions not present
under the facts of this case, a punishment that falls within the legislatively prescribed
range is unassailable on appeal. See Ex parte Chavez, 213 S.W.3d 320, 323-24 (Tex.
Crim. App. 2006); Dale v. State, 170 S.W.3d 797, 799 (Tex. App.—Fort Worth 2005, no
pet.). An individual adjudged guilty of a felony of the second degree shall be punished
by imprisonment in the institutional division for any term of not more than twenty years
or less than two years. TEX. PENAL CODE § 12.33(a) (West Supp. 2010). Appellant was
sentenced to sixteen years’ confinement. We overrule appellant’s first and second
issues.
III. CONCLUSION
We affirm the trial court’s judgment.
___________________________
GREGORY T. PERKES
Justice
Do not publish. TEX. R. APP. P. 47.2(b).
Delivered and filed the
23rd day of June 2011.