                                     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



        1
          See T EX . P EN AL C OD E A N N . § 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).
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


        2
            U.S. C ON ST . am end. VIII, XIV.

        3
          See T E X . P EN AL C OD E A N N § 12.34 (Vernon 2003) (providing that punishm ent range for a third-
degree felony is im prisonm ent for a term of two to ten years, plus an optional fine of $10,000).

        4
            U.S. C ON ST . am end. VIII.

                                                         2
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




        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
         W inchester v. State, 246 S.W .3d 386, 388 (Tex. App.–Am arillo 2008, pet. ref’d); Mullins v. State,
208 S.W .3d 469, 470 (Tex. App.–Texarkana 2006, no pet.).

                                                      3
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.




        10
          T EX . R. A PP . 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 W right 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).

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