MODIFIED IN PART AND AFFIRMED and Opinion Filed February 4, 2020




                                              In The
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                      No. 05-18-01486-CR
                                      No. 05-18-01487-CR
                                      No. 05-18-01488-CR
                                      No. 05-18-01489-CR
                                      No. 05-18-01490-CR

                               JONATHAN REYES, Appellant
                                          V.
                              THE STATE OF TEXAS, Appellee

                   On Appeal from the Criminal District Court No. 6
                                 Dallas County, Texas
    Trial Court Cause Nos. F-1830384-X, F-1830784-X, F-1660459-X, F-1660460-X, and
                                     F-1824882-X

                             MEMORANDUM OPINION
                   Before Justices Bridges, Partida-Kipness, and Pedersen, III
                               Opinion by Justice Partida-Kipness

       Jonathan Reyes challenges the sentences imposed following an adjudication of guilt for the

offenses of theft of property valued at $2,500 or more but less than $30,000, two counts of

aggravated robbery with a deadly weapon, and two counts of evading arrest using a motor vehicle.

In three issues, Reyes contends the sentences imposed violate the Eighth Amendment’s prohibition

on cruel and unusual punishment, the court abused its discretion in sentencing Reyes to prison

instead of probation, and the court erred in assessing duplicate court costs. In response, the State

contends the sentences do not violate the Eighth Amendment and the trial court properly sentenced

Reyes to prison, but Reyes has not preserved error on these issues. The State agrees,     however,
that the trial court erroneously assessed duplicate costs. We sustain Reyes’s issue regarding costs,

modify the judgments accordingly, and affirm the trial court’s judgments as modified.

                                            Background

       On December 12, 2016, Reyes and Miguel Gonzalez approached Juan Cortez as he parked

his Chevy Tahoe outside his apartment. Gonzalez pointed a handgun at Cortez and demanded the

car keys. Cortez complied, and Reyes and Gonzales fled in Cortez’s vehicle.

       Police later received a report of shots fired from a Chevy Tahoe into an occupied vehicle.

Officers initiated a traffic stop of the Tahoe, which matched the description of the reported vehicle.

As officers approached the Tahoe, the driver sped off, leading the officers on a high-speed, twenty-

mile chase. Officers witnessed a 9mm Ruger being thrown from the vehicle, and recovered a .25

caliber handgun from the driver after officers stopped the Tahoe. Reyes was the driver. Both

Reyes and Gonzales admitted they had stolen the Tahoe from Cortez at gunpoint.

       Reyes was indicted for aggravated robbery and evading arrest using a motor vehicle. Reyes

pleaded guilty, and the trial court deferred adjudication and placed Reyes on community

supervision for five years.

       For the first six months of his deferred sentence, Reyes met with his probation officer

monthly and passed two urinalysis tests. Reyes then stopped reporting, and on March 14, 2018,

the State moved to revoke Reyes’s probation and adjudicate guilt for violating the terms of his

probation. Specifically, the State alleged Reyes had failed to report to the community supervision

office, pay certain fees, participate in an anti-theft program, provide proof of attendance in a GED

program, participate in outpatient substance abuse counseling, and attend the First Friday (first-

time offender support) program. A warrant was issued for Reyes’s arrest.

       On April 9, 2018, police arrested Reyes and three juvenile accomplices for aggravated

robbery of a Home Depot in Grand Prairie. Earlier that day, the four individuals had robbed

                                                –2–
another Home Depot in Dallas and attempted to rob a Home Depot in Cedar Hill. Security at the

Grand Prairie store received notice of the Dallas robbery, and Home Depot’s protection specialist

Mike Vassel watched the attempted robbery of the Cedar Hill store on streaming surveillance

video. When a vehicle matching that used in the attempted Cedar Hill robbery arrived at the Grand

Prairie store, Vassel contacted police.

       The vehicle dropped off two juveniles at the front contractor entrance and then proceeded

around to the rear of the store. The juveniles went through the store, putting various power tools

into a shopping cart, and exited through a fire exit at the rear of the store. Vassel pursued. In the

lot behind the store, one juvenile fought with Vassel as the other pushed the cart toward the waiting

vehicle, driven by Reyes. One of the juveniles pulled a pistol from the driver’s side of the vehicle

and pointed it at Vassel, who discontinued the pursuit. The juveniles loaded the merchandise into

the vehicle and fled in the vehicle just as police arrived.

       Reyes then led police on a twenty-mile, high-speed chase. The chase proceeded on foot

when the individuals left the vehicle after being stopped at a railroad crossing by a passing train.

Officers continued to pursue and eventually apprehended all four individuals. Police recovered a

gun and numerous boxes of power tools from the vehicle.

       Reyes was indicted for aggravated robbery with a deadly weapon, theft of property valued

at $2,500 or more but less than $30,000, and evading arrest using a motor vehicle. Reyes pleaded

guilty to these charges and true to the State’s grounds for revoking his probation. The trial court

received Reyes’s open plea, heard testimony on sentencing, revoked Reyes’s probation, and

sentenced Reyes to two years’ confinement in jail for the theft, ten years’ imprisonment on the

second charge for evading arrest, twenty years’ imprisonment on the second charge for aggravated

robbery, ten years’ imprisonment on the first charge for evading arrest, and twenty-five years’




                                                 –3–
imprisonment on the first charge for aggravated robbery. All the sentences are to run concurrently.

This appeal followed.

                                               Analysis

        In three issues, Reyes contends: (1) the sentences violate the Eighth Amendment’s

prohibition on cruel and unusual punishment; (2) the trial court abused its discretion in sentencing

Reyes to prison instead of continued probation; and (3) the trial court erred in assessing duplicative

costs. The State does not contest Reyes’s third issue but contends that Reyes failed to preserve

error on his first two issues.

        In his first and second issues, Reyes contends that the sentences imposed were so excessive

as to be cruel and unusual, and violative of the Texas Penal Code’s rehabilitative objective because

they exceed “normal deterrence efforts” when compared to similar offenses. The State contends

that Reyes failed to preserve these objections for appellate review.

        To preserve a complaint for our review, a party must have presented to the trial court a

timely request, objection, or motion that states the specific grounds for the desired ruling if they

are not apparent from the context of the request, objection, or motion. TEX. R. APP. P. 33.1(a)(1);

Clark v. State, 365 S.W.3d 333, 339 (Tex. Crim. App. 2012). Further, the trial court must have

ruled on the request, objection, or motion, either expressly or implicitly, or the complaining party

must have objected to the trial court’s refusal to rule. TEX. R. APP. P. 33.1(a)(2); Pena v. State,

353 S.W.3d 797, 807 (Tex. Crim. App. 2011). A reviewing court should not address the merits of

an issue that has not been preserved for appeal. Wilson v. State, 311 S.W.3d 452, 473 (Tex. Crim.

App. 2010) (op. on reh’g); Richards v. State, No. 05-14-00075-CR, 2017 WL 1075598, at *1 (Tex.

App.—Dallas Mar. 21, 2017, no pet.) (mem. op., not designated for publication).

        A specific objection is required to give the trial judge an opportunity to rule on the objection

and to allow opposing counsel to remedy the error. Clark, 365 S.W.3d at 339. Thus, although no

                                                 –4–
“‘hyper-technical or formalistic use of words or phrases’” is required for an objection to preserve

error, the objecting party must “‘let the trial judge know what he wants, why he thinks he is entitled

to it, and to do so clearly enough for the judge to understand him at a time when the judge is in the

proper position to do something about it.’” Golliday v. State, 560 S.W.3d 664, 670 (Tex. Crim.

App. 2018) (quoting Clark, 365 S.W.3d at 339)). Usually, a complaint that has not been explicitly

stated will not meet this standard unless statements or actions on the record clearly indicate that

the judge and opposing counsel understood the specific argument. Clark, 365 S.W.3d at 339;

Resendez v. State, 306 S.W.3d 308, 315–16 (Tex. Crim. App. 2009). When the correct ground for

an objection is obvious to the judge and opposing counsel, however, a general or imprecise

objection does not forfeit error. Clark, 365 S.W.3d at 339. In determining whether a complaint

on appeal comports with a complaint made at trial, we look to the context of the objection and the

shared understanding of the parties at the time. Id.

       Generally, constitutional errors are forfeited by failure to object at trial. Id. (“[I]f a party

fails to properly object to constitutional errors at trial, these errors can be forfeited.”); Curry v.

State, 910 S.W.2d 490, 496 & n.2 (Tex. Crim. App. 1995); see Anderson v. State, 301 S.W.3d 276,

279–80 (Tex. Crim. App. 2009) (“[N]umerous constitutional rights, including those that implicate

a defendant’s due process rights, may be forfeited for purposes of appellate review unless properly

preserved.”); Mendez v. State, 138 S.W.3d 334, 342 (Tex. Crim. App. 2004). “[T]he trial court

should know when it is being asked to make a constitutional ruling because constitutional error is

subject to a much stricter harm analysis on appeal.” Clark, 365 S.W.3d at 340. The trial court

must be “presented with and have the chance to rule on the specific constitutional objection

because it can have such heavy implications on appeal.” Id.

       During closing argument at the sentencing hearing, Reyes’s counsel argued for the trial

court to continue Reyes’s probated sentence. Counsel noted mitigating factors, such as Reyes’s

                                                –5–
alleged alcohol and drug addiction, to explain what the State characterized as Reyes’s “complete

disregard for probation.” Counsel also acknowledged that the trial court had “many options

available” for sentencing and attempted to deflect leadership of the Home Depot robbery from

Reyes by highlighting Reyes’s testimony that he only engaged in the final high-speed pursuit

because he feared the juvenile with the gun was going to shoot him. Counsel conceded that the

trial court might not continue Reyes’s probation, stating, “If the Judge were to decide that

probation with . . . any sort of treatment that was an in-custody treatment was appropriate, he does

have that support system now.” (emphasis added). The trial court pronounced its sentence on all

five charges and asked Reyes’s counsel, “Is there any reason in law why your client should not be

sentenced?” Counsel responded, “No, Your Honor.”

         The record does not reflect that Reyes objected to the sentences, much less complained that

they violated the Eighth Amendment prohibition on cruel and unusual punishment or that they

were excessive in any way.1 See id. Indeed, the record reflects only that Reyes offered a qualified

argument to continue Reyes’s probation, acknowledging that the court might not do so. Nothing

in the record clearly indicates that the judge and opposing counsel understood the specific

arguments that Reyes makes on appeal. See id. at 339. Accordingly, we overrule Reyes’s first

and second issues.

         In his third issue, Reyes contends the trial court erred by assessing costs for each

consolidated case, instead of assessing costs for each set of consolidated cases (i.e., each “criminal

action”). Reyes asks us to modify the trial court’s judgment to remove the court costs assessed on

three of the cases and retain the court costs on the two offenses in the highest category. See TEX.

CODE CRIM. PROC. ANN. art. 102.073. The State does not contest Reyes’s request.


    1
       We further note that Reyes was sentenced within the statutory range of punishment. See Jackson v. State, 680
S.W.2d 809, 814 (Tex. Crim. App. 1984) (Generally, “as long as a sentence is within the proper range of punishment
it will not be disturbed on appeal”); Foster v. State, 525 S.W.3d 898, 911 (Tex. App.—Dallas 2017, pet. ref’d) (same).
                                                       –6–
       “In a single criminal action in which a defendant is convicted of two or more offenses or

of multiple counts of the same offense, the court may assess each court cost or fee only once

against the defendant.” Id. (a). “In a criminal action described by Subsection (a), each court cost

or fee the amount of which is determined according to the category of offense must be assessed

using the highest category of offense that is possible based on the defendant's convictions.” Id.

(b).

       The trial court assessed court costs in its judgment on each of the five cases at issue in this

appeal. However, the two cases from 2016 were consolidated, as were the three cases from 2018.

Thus, there were only two criminal actions. See id. (a). The trial court should have assessed court

costs only to the cases involving the highest category of offense in each criminal action, the 2016

and 2018 aggravated robbery cases. See id. (b).

                                            Conclusion

       On the record before us, Reyes did not preserve error on his arguments that the sentences

imposed violated the Eighth Amendment and that the trial court abused its discretion in not

continuing his probation. Thus, we overrule Reyes’s first and second issues. We agree that the

trial court improperly assessed court costs on three of the five cases at issue in this appeal.

Accordingly, we sustain Reyes’s third issue and modify the trial court’s judgment on cases F-

1830784-X, F-1660460-X, and F-1824882-X to remove court costs. As modified, we affirm the

trial court’s judgments.

                                                      /Robbie Partida-Kipness/
                                                      ROBBIE PARTIDA-KIPNESS
                                                      JUSTICE
Do Not Publish
TEX. R. APP. P. 47.2(b).
181486F.U05




                                               –7–
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                      JUDGMENT

 JONATHAN REYES, Appellant                         On Appeal from the Criminal District Court
                                                   No. 6, Dallas County, Texas
 No. 05-18-01486-CR         V.                     Trial Court Cause No. F-1830384-X.
                                                   Opinion delivered by Justice Partida-
 THE STATE OF TEXAS, Appellee                      Kipness. Justices Bridges and Pedersen, III
                                                   participating.

       Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.


Judgment entered this 4th day of February, 2020.




                                             –8–
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                      JUDGMENT

 JONATHAN REYES, Appellant                         On Appeal from the Criminal District Court
                                                   No. 6, Dallas County, Texas
 No. 05-18-01487-CR         V.                     Trial Court Cause No. F-1830784-X.
                                                   Opinion delivered by Justice Partida-
 THE STATE OF TEXAS, Appellee                      Kipness. Justices Bridges and Pedersen, III
                                                   participating.

Based on the Court’s opinion of this date, the judgment of the trial court is MODIFIED as
follows:

       The section entitled “Court Costs” is modified to show “$ N/A.”

As MODIFIED, the judgment of the trial court is AFFIRMED.


Judgment entered this 4th day of February, 2020.




                                             –9–
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                      JUDGMENT

 JONATHAN REYES, Appellant                          On Appeal from the Criminal District Court
                                                    No. 6, Dallas County, Texas
 No. 05-18-01488-CR         V.                      Trial Court Cause No. F-1660459-X.
                                                    Opinion delivered by Justice Partida-
 THE STATE OF TEXAS, Appellee                       Kipness. Justices Bridges and Pedersen, III
                                                    participating.

       Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.


Judgment entered this 4th day of February, 2020.




                                             –10–
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                      JUDGMENT

 JONATHAN REYES, Appellant                          On Appeal from the Criminal District Court
                                                    No. 6, Dallas County, Texas
 No. 05-18-01489-CR         V.                      Trial Court Cause No. F-1660460-X.
                                                    Opinion delivered by Justice Partida-
 THE STATE OF TEXAS, Appellee                       Kipness. Justices Bridges and Pedersen, III
                                                    participating.

Based on the Court’s opinion of this date, the judgment of the trial court is MODIFIED as
follows:

       The section entitled “Court Costs” is modified to show “$ N/A.”

As MODIFIED, the judgment of the trial court is AFFIRMED.


Judgment entered this 4th day of February, 2020.




                                             –11–
                                          S
                                 Court of Appeals
                          Fifth District of Texas at Dallas
                                          JUDGMENT

JONATHAN REYES, Appellant                             On Appeal from the Criminal District Court
                                                      No. 6, Dallas County, Texas
No. 05-18-01490-CR         V.                         Trial Court Cause No. F-1824882-X.
                                                      Opinion delivered by Justice Partida-Kipness.
THE STATE OF TEXAS, Appellee                          Justices Bridges and Pedersen, III
                                                      participating.

Based on the Court’s opinion of this date, the judgment of the trial court is MODIFIED as follows:

       The section entitled “Court Costs” is modified to show “$ N/A.”

As MODIFIED, the judgment of the trial court is AFFIRMED.


Judgment entered February 4, 2020.




                                               –12–
