                            NUMBER 13-17-00002-CR

                               COURT OF APPEALS

                       THIRTEENTH DISTRICT OF TEXAS

                         CORPUS CHRISTI - EDINBURG


JASON PAUL TIJERINA,                                                     Appellant,

                                              v.

THE STATE OF TEXAS,                                                       Appellee.


                    On appeal from the 377th District Court
                          of Victoria County, Texas.


                        MEMORANDUM OPINION
   Before Chief Justice Valdez and Justices Benavides and Longoria
             Memorandum Opinion by Justice Benavides

      Appellant Jason Paul Tijerina appeals his sentence imposed by the trial court. By

one issue, Tijerina argues the trial court’s order of consecutive sentences was

constitutionally excessive. We affirm.

                                         I.    BACKGROUND

      Tijerina was charged on an 18-count indictment:       Count 1-aggravated sexual

assault of a child, Counts 2 and 4-17-possession with the intent to distribute child
pornography, Count 3-sexual performance by a child, and Count 18-indecency with a child.

See TEX. PENAL CODE ANN. §§ 22.021, 43.26, 43.25, 21.11 (West, Westlaw through 2017

1st C.S.). Tijerina pleaded guilty to all 18 counts. As part of the plea of guilty, Tijerina

waived his right to appeal or the filing of a motion for new trial related to the guilt portion

of the hearing.

       During a subsequent sentencing hearing, after hearing testimony from both

witnesses for the State and Tijerina, the trial court sentenced Tijerina to ninety-nine years’

imprisonment on Count 1, twenty years’ imprisonment on Counts 2 and 4-17, and ten

years’ imprisonment on Count 18 in the Texas Department of Criminal Justice–Institutional

Division, with all counts to run consecutive to each other as well as Tijerina’s federal

sentence.1 Tijerina did not object to the sentence or file a motion for new trial. This appeal

follows.

                                        II.     EXCESSIVE SENTENCING

       By one issue, Tijerina argues that the trial court’s stacking on his sentence

constituted a constitutionally excessive sentence.

       A.        Applicable Law

       The Eighth Amendment provides that “[e]xcessive bail shall not be required, nor

excessive fines imposed, nor cruel and unusual punishments inflicted.” U.S. CONST.

amend. VIII. Even though within the range permitted by law, a sentence may nonetheless

be disproportionate to the gravity of the offense. See Ex parte Chavez, 213 S.W.3d 320,

323–24 (Tex. Crim. App. 2006).




       1   Tijerina had previously pleaded guilty and was sentenced in federal court to additional charges.

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       We review a trial court's decision to “stack” or cumulate sentences for an abuse of

discretion. See TEX. CODE CRIM. PROC. ANN. art. 42.08(a) (West, Westlaw through 2017

1st C.S.); Waddell v. State, 456 S.W.3d 366, 369 (Tex. App.—Corpus Christi 2015, no

pet.). Under article 42.08 of the code of criminal procedure, the trial judge has the

discretion to cumulate the sentences for two or more convictions. TEX. CODE CRIM. PROC.

ANN. art. 42.08(a). An abuse of discretion will generally be found only if: “(1) the trial court

imposes consecutive sentences when the law requires concurrent sentences, (2) the trial

court imposes concurrent sentences when the law requires consecutive ones, or (3) the

trial court otherwise fails to observe the statutory requirements pertaining to sentencing.”

Nicholas v. State, 56 S.W.3d 760, 765 (Tex. App.—Houston [14th Dist.] 2001, pet. ref'd).

       To preserve error for appellate review, the complaining party must present a timely

and specific objection to the trial court, and obtain a ruling. TEX. R. APP. P. 33.1(a). A

party's failure to specifically object to an alleged disproportionate or cruel and unusual

sentence in the trial court or in a post-trial motion waives any error for the purposes of

appellate review. See Rhoades v. State, 934 S.W.2d 113, 120 (Tex. Crim. App. 1996);

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

(“[I]n order to preserve for appellate review a complaint that a sentence is grossly

disproportionate, constituting cruel and unusual punishment, a defendant must present to

the trial court a timely request, objection, or motion stating the specific grounds for the

ruling desired.”).

       B.     Discussion

       Having reviewed the record, we note that appellant did not object to an alleged

disproportionate or cruel and unusual sentence in the trial court or in a post-trial motion.



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See TEX. R. APP. P. 33.1(a); Arriaga v. State, 335 S.W.3d 331, 334 (Tex. App.—Houston

[14th Dist.] 2010, pet. ref’d). Accordingly, appellant has waived any error for purposes of

appellate review.    See Rhoades, 934 S.W.2d at 120; Noland, 264 S.W.3d at 151.

Appellant's issue is overruled.

                                       III.    CONCLUSION

       We affirm the trial court’s judgment.



                                                              GINA M. BENAVIDES,
                                                              Justice



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

Delivered and filed the
31st day of May, 2018.




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