                        COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                             NO. 02-10-00306-CR


RUBEN LOYOLA A/K/A RUBEN                                            APPELLANT
AYALA

                                       V.

THE STATE OF TEXAS                                                       STATE


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          FROM THE 432ND DISTRICT COURT OF TARRANT COUNTY

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                        MEMORANDUM OPINION1
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      Appellant Ruben Loyola a/k/a Ruben Ayala appeals the trial court’s

sentence associated with his conviction for evading arrest in a vehicle.2 In one


      1
       See Tex. R. App. P. 47.4.
      2
       See Tex. Penal Code Ann. § 38.04(a), (b)(1)(B) (West 2011). A first
conviction for evading arrest in a vehicle is typically punished as a state jail
felony. Id. § 38.04(b)(1)(B). Appellant’s indictment, however, contained an
enhancement notice stating that he had been previously convicted of a felony
offense in which a court found in its judgment that he used or exhibited a deadly
weapon. When appellant admitted the truth of this notice and the trial court
point, he alleges that the trial court abused its discretion by assessing a five-year

sentence. Because appellant forfeited this point, we affirm.

                                Background Facts

      In August 2009, a grand jury charged appellant with evading arrest in a

vehicle. Appellant retained counsel. In January 2010, appellant wrote a letter to

the trial court stating that he wanted to be sentenced ―according to the evidence‖

and not ―according to [his] jail record.‖ In the letter, appellant stated that he was

attending a Bible school. After appellant filed various pretrial motions, in May

2010, he waived constitutional and statutory rights, judicially confessed, and

entered an open guilty plea.

      The trial court held a sentencing hearing in July 2010. The court admitted

a presentence investigation report.3 It also admitted (1) a letter from appellant’s

employer stating that appellant was a dependable worker who showed initiative

and good communication and organizational skills, and (2) a letter from the

Calvary Cathedral International Bible College (Calvary) stating that appellant was

registered as a full-time student in good standing.

      Appellant’s wife, Lupita, testified that she and appellant had been married

ten years and had three children together. She said that appellant had recently



found it to be true, his punishment range increased to that of a third-degree
felony. See id. § 12.35(c)(2)(B) (West 2011).
      3
       Appellant’s counsel confirmed that he had reviewed the report with
appellant, and counsel made no objections to the report’s content.


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become a Christian and had shown a ―tremendous amount of improvement as a

father and as a husband.‖      She realized that the trial court could sentence

appellant to up to ten years’ confinement, but she asked the court to grant

community supervision. On cross-examination, Lupita recognized that appellant

had been previously convicted of attempted murder, theft, DWI, and burglary of a

vehicle.   Dave Geiger, Calvary’s director, testified that appellant began an

associate’s degree program a few months before the trial and appeared to be

dedicated to his studies. Appellant chose to not testify.

      The trial court convicted appellant. Citing his extensive criminal history,

the trial court sentenced him to five years’ confinement.        The court asked

whether there was any legal reason why the sentence should not be pronounced,

and appellant’s counsel answered, ―There is no legal reason, Your Honor.‖

Appellant filed a motion for new trial, which alleged solely that one of his trial

attorneys rendered ineffective assistance.     Appellant then filed notice of this

appeal.

            Appellant Forfeited His Complaint About the Severity
                               of His Sentence

      In his sole point, appellant argues that the trial court abused its discretion

by sentencing him to five years’ confinement instead of sentencing him to less

years or granting community supervision. Appellant concedes in his brief that his

point is ―tenuous.‖




                                         3
      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); Layton v. State, 280 S.W.3d

235, 238–39 (Tex. Crim. App. 2009). 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); Mendez v. State, 138 S.W.3d 334, 341 (Tex. Crim. App. 2004).

A reviewing court should not address the merits of an issue that has not been

preserved for appeal. Ford v. State, 305 S.W.3d 530, 532 (Tex. Crim. App.

2009).

      We have held on several occasions that a defendant’s complaint regarding

the severity of a sentence must be raised at trial to be preserved for appeal.

See Laboriel-Guity v. State, 336 S.W.3d 754, 756 (Tex. App.—Fort Worth 2011,

pet. ref’d) (―Appellant did not assert an objection when the trial court sentenced

him to thirty years’ confinement, nor did he file a motion for new trial challenging

the severity of his sentence.    Consequently, Appellant failed to preserve this

point for appellate review.‖); Kim v. State, 283 S.W.3d 473, 475 (Tex. App.—Fort

Worth 2009, pet. ref’d); Wright v. State, 249 S.W.3d 581, 584 (Tex. App.—Fort

Worth 2008, no pet.) (citing Mercado v. State, 718 S.W.2d 291, 296 (Tex. Crim.

App. 1986)). Accordingly, because appellant did not complain about the severity




                                         4
of his sentence at trial, we hold that he forfeited the complaint, and we overrule

his sole point.

                                  Conclusion

      Having overruled appellant’s only point, we affirm the trial court’s

judgment.




                                                  PER CURIAM

PANEL: LIVINGSTON, C.J.; GARDNER and WALKER, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: July 7, 2011




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