                              NUMBER 13-08-00250-CR

                              COURT OF APPEALS

                    THIRTEENTH DISTRICT OF TEXAS

                      CORPUS CHRISTI - EDINBURG


JESUS ISIDRO ESPINOZA,                                                       Appellant,

                                             v.

THE STATE OF TEXAS                                                            Appellee.


   On appeal from the 194th District Court of Dallas County, Texas.


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

         Appellant, Jesus Isidro Espinoza, entered an open plea of guilty to the charge of

aggravated robbery, a first-degree felony. See TEX . PENAL CODE ANN . § 29.03 (Vernon

2003).    After hearing evidence, the trial court sentenced Espinoza to twelve years’

imprisonment and assessed court costs. By a single issue, Espinoza argues that the trial
court improperly based his punishment on the desires of the complainant and that the

punishment was not in compliance with the objectives of punishment set out in the Texas

Penal Code. See id. § 1.02(1), (3) (Vernon 2003).1 We affirm.2

         The State argues that Espinoza failed to preserve his argument for appeal by failing

to object in the trial court at the time the sentence was imposed and by failing to raise the

issue in a motion for new trial. See TEX . R. APP. P. 33.1(a)(1)(A) (“As a prerequisite to

presenting a complaint for appellate review, the record must show that: . . . the complaint

was made to the trial court by a timely request, objection, or motion that . . . stated the

grounds for the ruling that the complaining party sought from the trial court with sufficient

specificity to make the trial court aware of the complaint, unless the specific grounds were


         1
             Section 1.02 provides:

         The general purposes of this code are to establish a system of prohibitions, penalties, and
         correctional m easures to deal with conduct that unjustifiably and inexcusably causes or
         threatens harm to those individual or public interests for which state protection is appropriate.
         To this end, the provisions of this code are intended, and shall be construed, to achieve the
         following objectives:

         (1)       to insure the public safety through:


                   (A)      the deterrent influence of the penalties hereinafter provided;


                   (B)      the rehabilitation of those convicted of violations of this code; and


                   (C)      such punishm ent as m ay be necessary to prevent likely recurrence of
                            crim inal behavior . . .
                   ....

         (3)       to prescribe penalties that are proportionate to the seriousness of offenses and that
                   perm it recognition of differences in rehabilitation possibilities am ong individual
                   offenders; . . . .

T EX . P EN AL C OD E A N N . § 1.02 (1), (3) (Vernon 2003).

        2
          As this is a m em orandum opinion and the parties are fam iliar with the facts, we will only recite them
herein as necessary to explain our holding. See T EX . R. A PP . P. 47.4.

                                                           2
apparent from the context . . . .”). Espinoza concedes that he did not object to the

sentence but argues that (1) his complaint was apparent from his request to be placed on

probation and receive drug treatment, and (2) that an objection would have served no

useful purpose because punishment was the only issue before the trial court.

       First, we disagree that an objection was not required because punishment was the

only issue before the trial court. “An appellant may not assert error pertaining to his

sentence or punishment when he failed to object or otherwise raise the error in the trial

court.” Thompson v. State, 243 S.W.3d 774, 775 (Tex. App.–Fort Worth 2007, pet. ref’d)

(citing Mercado v. State, 718 S.W.2d 291, 296 (Tex. Crim. App. 1986)). This is true even

if punishment is the only issue before the trial court. See id.

       Moreover, the complaint Espinoza now raises on appeal was not apparent from his

request for drug treatment and probation.          After the trial court heard evidence on

punishment, Espinoza’s counsel made the following argument:

               Your Honor, the easiest thing you can do in the world, say you know
       what, there is nothing we can do anything for him [sic]. Although he is only
       twenty years old, he is a young man here, who never had a father figure if
       [sic] his life. Who has had issues in school, who is not the brightest person
       in the world. And I mean that with the utmost respect, not in a disrespectful
       way to my client. But he is not a smart man. He has made dump [sic]
       choices for whatever influence there might have been in his life, whether it
       be drugs or a girlfriend. And I am sure both of them can make sane people
       do stupid things. And he has done some dumb things.

                I think the most telling part about his truthfulness is when he got his
       butt kicked in the jail, he realized he wasn’t a bad ass. He wasn’t who he
       thinks he was in his arm [sic]. Who he is thought he was [sic] when he was
       out there terrorizing poor Mr. Valdaris. And I think at that moment in time, he
       realize [sic] what it is like to be a victim. What he realized what [sic] it’s like
       to be a victim. What he realized what [sic] it’s like to be maybe the small dog
       in [sic] the block, the one that is picked on. And maybe that’s what this man
       needed to see the light in his life. To learn, to empathize, to learn to see
       what it is.

                                               3
             And yet the easy thing for the State to bring up is, Judge he has had
      his chances, he has had his abilities. But has he really? Has he had the
      opportunity to really see what life is really like on the inside, and I think he
      has that now in the 14 months that he has been here in custody. Perhaps
      the chance to get some real drug treatment is out there, whether it be
      through some sort of strict probation that the Court can put him on or
      whether it might be trying to get some sort of treatment under shock
      probation or something. But there are options that this Court has, I think,
      other than turning around and saying ten years, 15 years, 20 years and
      making an easy decision.

             I know it is not an easy decision for the Court, I know the Court is
      going to consider every option. I want to try to let the Court understand that
      perhaps the man we have here today is not the man who terrorized his victim
      who testified earlier. I think getting his ass kicked in the jail has probably
      done more for him changing than anything else in seeing things the right
      way. In seeing things the way the victim would be [sic]. And that has had
      the ability to grow him up.

             ....

             I am asking the Court not to throw him away. To come up with a
      creative way that can save him and ensure the safety of the citizens of this
      county as well, Your Honor. Thank you.

      On appeal, Espinoza makes a very specific complaint; he argues that the trial

court’s punishment appears to be based solely on the desires of the complainant to punish

him with imprisonment and not on the objectives of punishment set out in the penal code.

We cannot conclude that his argument in the trial court, before the imposition of the

sentence, requesting treatment and probation was sufficient to make the trial court aware

of the complaint he now makes on appeal. See Jackson v. State, 989 S.W.2d 842, 844-45

(Tex. App.–Texarkana 1999, no pet.); see also Rivas v. State, No. 13-03-00209-CR, 2004

WL 5050459, at *2 (Tex. App.–Corpus Christi Aug. 5, 2004, no pet.) (mem. op.; not

designated for publication) (“However, a request for probation and treatment does not

constitute a sufficient objection to preserve an issue of disproportionate sentencing.”).

                                             4
Accordingly, we overrule Espinoza’s sole issue and affirm the trial court’s judgment.3




                                                               GINA M. BENAVIDES,
                                                               Justice

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

Memorandum Opinion delivered and
filed this the 27th day of August, 2009.




         3
           W e note that in Hernandez v. State, we held that a defendant has an absolute right to an im partial
judge during sentencing, and that “a defendant m ay com plain for the first tim e on appeal about a trial court's
refusal (i.e., lack of im partiality) to consider the full range of punishm ent— so long as the trial judge's conduct
is so egregious as to deem the judge biased on the m atter of punishm ent.” 268 S.W .2d 176, 178 (Tex. App.
–Corpus Christi 2008, no pet.). Espinoza does not argue that the court’s conduct was so egregious as to
deem the judge biased. In any event, the record does not dem onstrate that the trial court’s conduct was
egregious and am ounted to bias. See, e.g., id. (holding that record dem onstrated egregious conduct and bias
where trial court assessed punishm ent by sum m arily doubling a prior sentence). Im m ediately before
assessing punishm ent, the trial court stated:

         The Court, having listened to all the testim ony in this case, I feel that you are at least today
         rem orseful or regretful of the offense that you com m itted. That being the case, I also take
         into consideration the victim and what he went through and what he suffered as a result of
         the offense that you com m itted. T herefore, I find you guilty of the offense of aggravated
         robbery as alleged in the indictm ent. I agree with the State to a certain extent that because
         of the facts of this case that you should be given a lengthier penitentiary sentence,
         additionally given the fact that you have been through the system on num erous occasions;
         however, the Court is going to take som e sym pathy with respect to your age. I think that at
         the tim e you com m itted this offense you were a bad ass. I don’t know m aybe you com m itted
         this offense because you are still considering yourself a bad ass today. . . . However, I
         sentence you to 12 years confinem ent in the Institutional Division of the Texas Departm ent
         of Crim inal Justice, and I will m ake an affirm ative finding of a deadly weapon, that being a
         firearm , was used.

The trial court’s statem ents indicate that he considered all the evidence and that he was not biased. See T EX .
P E N AL C OD E A N N . § 1.02(1), (3); Jaenike v. State, 109 S.W .3d 793, 796-97 (Tex. App.–Houston [1st Dist.]
2003, pet. ref’d). Thus, Hernandez does not excuse Espinoza’s failure to object.

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