                                     NUMBERS
                                   13-14-00219-CR
                                   13-14-00220-CR

                            COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                     CORPUS CHRISTI - EDINBURG

ANDREW DAVID REED a/k/a
JOSHUA REED,                                                                Appellant,

                                          v.

THE STATE OF TEXAS,                                                         Appellee.


                   On appeal from the 252nd District Court
                        of Jefferson County, Texas.


                       MEMORANDUM OPINION
    Before Chief Justice Valdez and Justices Benavides and Perkes
             Memorandum Opinion by Justice Benavides
      By two issues, appellant, Andrew David Reed, appeals his conviction. Reed

complains: (1) the trial court’s sentencing was disproportionate and unreasonable thereby
violating his rights under the Eighth Amendment; and (2) the trial court’s sentencing was

disproportionate thereby violating his state constitutional right under Article I, section 13

of the Texas Constitution.   See U.S. CONST. amend. VIII; See TEX. CONST. ART. 1, § 13.

We affirm.

                                     I. BACKGROUND

       On April 28, 2010, in trial court cause numbers 08-04699 and 08-04697, Reed

pleaded guilty to the offenses of aggravated robbery, a first-degree felony, which carries

statutory punishment range of a life sentence or not more than ninety-nine years or less

than five years and a fine not to exceed $10,000.            See TEX. PENAL CODE ANN. §

12.32(a)(b) (West, Westlaw through Ch. 46 2015 R.S.).              The trial court deferred

adjudication and placed Reed on community supervision for a period of ten years and

assessed a fine of $1,000. Subsequently, the State filed a motion to revoke in 2011,

which was dismissed in 2012.      The State filed another motion on July 2, 2013, alleging

that Reed had violated several terms of community supervision such as: (1) driving while

intoxicated; (2) public intoxication; (3) using marijuana and phencyclidine; and (4) failing

to comply with program guidelines of the Substance Abuse Felony Punishment Facility

(“SAFPF”).   On March 24, 2014, at the hearing for the motion to revoke, Reed pleaded

true to several counts: (1) driving while intoxicated; (2) public intoxication; (3) and (4)

testing positive for marijuana and phencyclidine; (6) and (8) testing positive for marijuana;

and (7) and (9) failing to comply with the rules of SAFPF.   As a result, the trial court found

Reed violated the terms of his community supervision on both cases, revoked his

community supervision, found him guilty of the offenses of aggravated robbery, and



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sentenced him to thirty years in the Institutional Division of the Texas Department of

Criminal Justice. The trial court ordered the sentences to run concurrently.     This appeal

followed.

                                         II. WAIVER

       By his first issue, Reed argues that the trial court’s sentencing was

disproportionate   and    unreasonable,     thereby   violating   his   Eighth   Amendment

constitutional right against cruel and unusual punishment.     See U.S. CONST. amend. VIII.

By his second issue, Reed also asserts that the trial court’s sentencing was

disproportionate, thereby violating his state constitutional right under Article I, section 13

of the Texas Constitution. See TEX. CONST. ART. 1, § 13.      Because these two issues are

related, we will address them together.

   A. Preservation of Error

       The Eighth Amendment of the United States Constitution provides that “[e]xcessive

bail shall not be required, nor excessive fines, nor cruel and unusual punishment inflicted.”

See U.S. CONST. amend. VIII. The Eighth Amendment applies to punishments imposed

by state courts through the Due Process Clause of the Fourteenth Amendment. Id.

amend. XIV. This right—like every constitutional or statutory right—can be waived by a

“failure to object.” Smith v. State, 721 S.W.2d 844, 855 (Tex .Crim. App. 1986); Kim v.

State, 283 S.W.3d 473, 475 (Tex. App.—Fort Worth 2009, pet. ref’d); Noland v. State,

264 S.W.3d 144, 151–52 (Tex. App.—Houston [1st Dist.] 2007, pet. ref'd) (concluding

that by failing to object, the appellant did not preserve an argument that the sentence was

grossly disproportionate to offense). To preserve an error for appellate review, a party



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must present a timely objection to the trial court, state the specific grounds for the

objection, and obtain a ruling.   TEX. R. APP. P. 33.1(a); Trevino v. State, 174 S.W.3d 925,

927 (Tex. App.—Corpus Christi 2005, pet. ref'd).        As a general rule, an appellant may

not complain of an error pertaining to his sentence or punishment if he has failed to object

or otherwise raise error in the trial court.   Mercado v. State, 718 S.W.2d 291, 296 (Tex.

Crim. App. 1986); see Quintana v. State, 777 S.W.2d 474, 479 (Tex. App.—Corpus

Christi 1989, pet. ref’d) (holding defendant waived cruel and unusual punishment by

failing to object); cf. Papillion v. State, 908 S.W.2d 621, 623 (Tex. App.—Beaumont 1995,

no pet.) (holding defendant preserved issue by timely filing a motion for new trial even

though he failed to object at sentencing or request to withdraw his plea).     However, “a

party is not required to make a contemporaneous objection to the imposition of an illegal

sentence. Thus, an appellate court that otherwise has jurisdiction over a criminal

conviction may always notice and correct an illegal sentence.”      Trevino, 174 S.W.3d at

n. 4 (“A sentence outside the maximum or minimum range of punishment is unauthorized

by law and therefore illegal.”) (internal citations omitted).

   B. Discussion

       Here, Reed never raised any complaint in the trial court regarding his sentence,

nor did Reed complain of the sentence in any post-trial motion. See Papillion, 908 S.W.2d

at 623. Instead, Reed raises this complaint for the first time on appeal. We hold that

Reed has failed to preserve this issue for our review. Quintana, 777 S.W.2d at 479. As

a result, we overrule his two issues.




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                                     III. CONCLUSION

       We affirm the trial court’s judgments.



                                                       GINA M. BENAVIDES,
                                                       Justice


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

Delivered and filed the
30th day of July, 2015.




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