Opinion issued September 16, 2014




                                      In The

                              Court of Appeals
                                     For The

                          First District of Texas
                             ————————————
                              NO. 01-13-00791-CR
                            ———————————
                    RALPH ERNEST ALONSO, Appellant
                                        V.
                       THE STATE OF TEXAS, Appellee


                    On Appeal from the 177th District Court
                            Harris County, Texas
                        Trial Court Case No. 1327731


                          MEMORANDUM OPINION

      Appellant Ralph Ernest Alonso pleaded guilty to murder, a first-degree

felony, without an agreed recommendation as to punishment. See TEX. PENAL

CODE ANN. § 19.02(c) (West 2011). The trial court sentenced him to imprisonment

for 60 years. Alonso argues that the trial court should have granted him a new trial
because his sentence violates the Fourteenth Amendment’s Due Process clause and

the Eighth Amendment’s Cruel and Unusual Punishment clause. U.S. CONST.

amends. VIII, XIV. Because there was no objection in the trial court to the

constitutionality of the sentence, the issue has been waived, and we affirm.


                                      Background

      Appellant Ralph Ernest Alonso believed that he had been cheated out of $60

in a failed marijuana deal. Angel Serrano had agreed to buy some marijuana for

him from an unfamiliar man. That person accepted Alonso’s money but failed to

deliver the drugs. Serrano identified the swindler as complainant Warren Keith

White, who worked at a grocery store.

      Alonso drove to the store where White worked, joined by Serrano and two

others, Jessie Lurue Nelson, Jr. and Daniel Porter. Nelson carried a gun in the front

seat of the car while Porter and Serrano rode in the back. When they arrived, they

waited in the parking lot for White to go to his car. From inside the store, White

noticed Alonso’s group in the vicinity of his car and suspected them of planning to

steal it. He called a friend, Justin Scarbrough, for help. The two then approached

Alonso’s car in Scarborough’s sedan.

      Scarborough pulled his car alongside Alonso’s. White got out and

approached his car from the passenger’s side. Nelson then shot White several times

in the head and chest, killing him.


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      Alonso and Nelson both pleaded guilty to murder. Punishment was tried to

the bench. After a hearing, Alonso was sentenced to imprisonment for 60 years and

Nelson received a 20-year sentence.

      Although the evidence showed that Nelson was the shooter, prior to

pronouncing sentence, the trial court explained that it believed Alonso was more

culpable because his money and actions put the “entire episode into motion.”

Additionally, the trial court emphasized that evidence adduced at the sentencing

hearing showed Alonso had lied to the Katy Police Department, had been unsure

that it was the complainant who stole his money, and had tried to blame his actions

on other distractions and excuses. After sentencing, the trial court asked Alonso if

there was any reason his sentence should not be pronounced, and he answered in

the negative. Alonso filed a motion for new trial, which was overruled by operation

of law, and then he filed a timely written notice of appeal.

                                      Analysis

      In his sole issue on appeal, Alonso contends that the trial court abused its

discretion, in violation of the Due Process and Cruel and Unusual Punishment

Clauses of the United States Constitution, by sentencing Alonso to 60 years in

prison. He argues that the sentence is unconstitutional because it is

disproportionate to the crime. The State argues that this issue was waived.




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      As a prerequisite to presenting a complaint for appellate review, a party must

make the complaint known to the trial court by a timely request, objection, or

motion that states the grounds for the ruling of the complaining party sought from

the trial court with sufficient specificity to make the court aware of the complaint

and obtain a ruling from the trial court. TEX. R. APP. P. 33.1(a).

      Alonso did not object and therefore has waived his complaints on appeal, see

id., unless the alleged error of which he complains was a fundamental error

affecting substantial rights, in which case no objection is necessary to preserve

error. TEX. R. EVID. 103(d); Rhoades v. State, 934 S.W.2d 113, 120 (Tex. Crim.

App. 1996); Steadman v. State, 31 S.W.3d 738, 742 (Tex. App.—Houston [1st

Dist.] 2000, pet. ref’d). However, a defendant’s claim that he received a

disproportionate sentence does not present an issue of fundamental error. See Solis

v. State, 945 S.W.2d 300, 301 (Tex. App.—Houston [1st Dist.] 1997, pet. ref’d)

(holding that defendant waived his complaint on appeal because he failed to object

to his punishment violating the Eighth Amendment for being disproportionate).

Therefore, Alonso’s failure to object waived his appellate complaint. Rhoades, 934

S.W.2d at 120; Nicholas v. State, 56 S.W.3d 760, 768 (Tex. App.—Houston [14th

Dist.] 2001, pet. ref’d); Steadman, 31 S.W.3d at 742.

      Alonso also relies upon North Carolina v. Pearce, 395 U.S. 711 (1969), in

which the Supreme Court held that due process “requires that vindictiveness



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against a defendant for having successfully attacked his first conviction must play

no part in the sentence he receives after a new trial.” 395 U.S. at 725, 89 S. Ct. at

2080. Pearce, however, is inapplicable to the case before us because Alonso does

not contend that he was sentenced following a successful attack on a prior

conviction.

      Appellant’s issue is overruled.

                                    Conclusion

      We affirm the judgment of the trial court.




                                               Michael Massengale
                                               Justice

Panel consists of Justices Massengale, Brown, and Huddle.

Do not publish. TEX. R. APP. P. 47.2(b).




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