








NUMBER 13-07-609-CR


COURT OF APPEALS


THIRTEENTH DISTRICT OF TEXAS


CORPUS CHRISTI - EDINBURG 

 

DUSTIN FITZGERALD,							Appellant,

v.


THE STATE OF TEXAS,							Appellee.
 

On appeal from the 148th District Court of Nueces County, Texas.

 

MEMORANDUM OPINION


Before Chief Justice Valdez and Justices Yañez and Benavides

Memorandum Opinion by Justice Yañez

 
	Without the benefit of a plea bargain, appellant, Dustin Fitzgerald, pleaded guilty to
one count of unlawful possession of a firearm by a felon. (1)  The trial court sentenced
appellant to seven year's imprisonment.  The sole issue raised on appeal is whether the
punishment assessed by the court during sentencing is disproportionate to the seriousness
of the crime in violation of the Eighth and Fourteenth Amendments to the United States
Constitution. (2)  We affirm.
I. Background
	On July 8, 2007, appellant was at his apartment when police officers came to
investigate an incident at a neighbor's apartment.  Appellant's neighbor had complained
to police that he heard a gunshot and that a bullet penetrated his wall.  Police asked
appellant if they could search his apartment and he consented.  The police found a
handgun and live ammunition during the search.  Appellant had previously been
incarcerated for the felony offense of robbery with a dangerous weapon in North Carolina. 
The offense at issue here occurred less than five years after his release.  He pleaded guilty
and requested community supervision.  The trial court imposed a sentence of seven years,
within the statutory range of punishment. (3)
II. Disproportionate Punishment
	Appellant contends that his seven-year sentence is unconstitutionally
disproportionate to the severity of his crime, thus violating the Eighth Amendment
protection against cruel and unusual punishment. (4)  The Eighth Amendment does not
require strict proportionality between the crime and the sentence; rather it forbids only
extreme sentences that are grossly disproportionate. (5)  It is applicable to the states by and
through the Fourteenth Amendment. (6)  The precise contours of the "grossly
disproportionate" standard are unclear, but it applies only in "exceedingly rare" and
"extreme" cases. (7)  Texas courts have traditionally held that a sentence within the statutory
range prescribed by the legislature is not excessive. (8)  However, Texas courts recognize
that a prohibition against grossly disproportionate sentences survives under the federal
constitution apart from any consideration of whether the punishment assessed is within the
statute's punishment range. (9)
	The State argues that appellant failed to raise an objection at trial regarding cruel
and unusual punishment, thus failing to preserve the issue on appeal.  We agree.
III. Preservation of Error
 Appellant made no objection to his sentence to the trial court, during sentencing, or
in any post-trial motion.  He never claimed the sentence was excessive or cruel.  In order
to preserve an issue for appellate review, a party must present a timely request, objection,
or motion to the trial court stating the specific grounds for the objection and obtain a
ruling. (10)  It is well-settled that even constitutional rights may be waived by a failure to
object. (11)  Moreover, this Court has held that failing to complain that a sentence is cruel or
unusual, either by objection during the punishment phase of the trial or by a motion for a
new trial, waives the error. (12)
IV. Conclusion
	Here, appellant neither objected to his sentence nor raised the issue in his motion
for new trial.  Therefore, appellant has failed to preserve this issue for review.  Accordingly,
we overrule appellant's sole issue and affirm the trial court's judgment.

  
 LINDA REYNA YAÑEZ,
							Justice




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

Memorandum Opinion delivered and filed 
this the 18th day of June, 2009.
1.  See Tex. Penal Code Ann. § 46.04(a)(1)  (Vernon Supp. 2008).  Unlawful possession of a firearm
by a felon is a third-degree felony.  See id. at § 46.04(e).
2.  U.S. Const. amend. VIII, XIV.
3.  See Tex. Penal Code Ann § 12.34 (Vernon 2003) (providing that punishment range for a third-degree felony is imprisonment for a term of two to ten years, plus an optional fine of $10,000).
4.  U.S. Const. amend. VIII.
5.  See Ewing v. California, 538 U.S. 11, 23 (2003).
6.  See Robinson v. California, 370 U.S. 660, 667 (1962).
7.  See Lockyer v. Andrade, 538 U.S. 63, 73 (2003).
8.  See Jordan v. State, 495 S.W.2d 949, 952 (Tex. Crim. App. 1973); Trevino v. State, 174 S.W.3d
925, 928 (Tex. App.-Corpus Christi 2005, pet. ref'd).
9.  Winchester v. State, 246 S.W.3d 386, 388 (Tex. App.-Amarillo 2008, pet. ref'd); Mullins v. State,
208 S.W.3d 469, 470 (Tex. App.-Texarkana 2006, no pet.). 
10.  Tex. R. App. P. 33.1; see Trevino, 174 S.W.3d at 927 (citing Blue v. State, 41 S.W.3d 129, 131 (Tex.
Crim. App. 2000)).
11.  See Trevino, 174 S.W.3d at 927 (citing Smith v. State, 721 S.W.2d 844, 855 (Tex. Crim. App.
1986)); see also Wright v. State, 28 S.W.3d 526, 536 (Tex. Crim. App. 2000); Luna v. State, 70 S.W.3d 354,
359 (Tex. App.-Corpus Christi 2002, pet. ref'd).
12.  Quintana v. State, 777 S.W.2d 474, 479 (Tex. App.-Corpus Christi 1989, pet. ref'd).

