Opinion issued November 15, 2016




                                    In The

                             Court of Appeals
                                   For The

                         First District of Texas
                           ————————————
                            NOS. 01-15-00709-CR
                               01-15-00710-CR
                               01-15-00711-CR
                          ———————————
                 ROBERT JAMES MARTIN III, Appellant
                                      V.
                     THE STATE OF TEXAS, Appellee


                  On Appeal from the 149th District Court
                          Brazoria County, Texas
                 Trial Court Case Nos. 74428, 74429 & 74430


                        MEMORANDUM OPINION

      Appellant, Robert James Martin III, pleaded guilty to two counts of

aggravated robbery and one count of evading arrest in a vehicle. See TEX. PENAL

CODE ANN. § 29.03 (West 2011) (setting out elements of aggravated robbery); id.
§ 38.04 (West Supp. 2016) (setting out elements of evading arrest). The trial court

assessed his punishment at forty years’ confinement for each of the aggravated

robbery charges and ten years’ confinement for the evading arrest in a vehicle

charge, with the sentences to run concurrently.1 In one issue, appellant argues that

the punishment of forty years’ confinement was grossly disproportional and

unconstitutional. Concluding that he failed to preserve this complaint for

consideration on appeal, we affirm.

                                   Background

      Appellant pleaded guilty to two counts of aggravated robbery and one count

of evading arrest and agreed to have his punishment determined by the trial court.

At the punishment hearing, the State presented evidence regarding appellant’s

offenses. The State established that appellant and other suspects were involved in

the robbery of an Exxon Handy Stop in Pearland, Texas, on August 13, 2014.

Security cameras captured images of appellant brandishing a firearm during the

robbery. Appellant was identified by a handprint recovered from the scene of the

robbery, and police questioned him regarding this crime. Appellant eventually




1
      Trial court cause number 74428 for evading arrest in a vehicle resulted in
      appellate cause number 01-15-00709-CR. Trial court cause number 74429 for
      aggravated robbery resulted in appellate cause number 01-15-00710-CR. Trial
      court cause number 74430 for aggravated robbery resulted in appellate cause
      number 01-15-00711-CR.

                                         2
acknowledged some involvement in the crime, telling the police that he became

aware of the robbery after it had been committed. He was not arrested at that time.

      Ten days later, on August 23, 2014, appellant was involved in a second

robbery, during which he again displayed a firearm and robbed people inside a

Shop-N-Go convenience store in Pearland, Texas. Law enforcement personnel

responded to the scene of the robbery and pursued appellant and the other suspects,

who had fled in a vehicle. The suspects drove through residential areas at speeds

between eighty and ninety miles per hour. Law enforcement deployed spikes to

stop the vehicle, which eventually side-swiped another vehicle, causing an

accident. The suspects, including appellant, fled on foot into the residential area

before they were eventually captured and arrested.

      On May 8, 2015, after he had been released on a bond, appellant was again

identified in connection with an armed robbery of a Fuel Expo convenience store

in Harris County. The State presented evidence from law enforcement’s

investigation of all three robberies, including the testimony of the officers

involved, evidence collected from the crime scenes, and photographs of appellant

taken from his cell phone depicting him posing with a firearm and a stack of

money. Appellant pleaded guilty to the two Pearland robberies and to evading

arrest in connection with the August 23, 2014 Pearland robbery.




                                         3
      The various complainants from the robberies testified during the punishment

hearing. Julio Martinez, his wife, Miroslava Martinez, and their two children, who

were eight and eighteen years old at the time, were at the Shop-N-Go during the

robbery. Julio testified that appellant threatened him with a firearm, took cash from

him, and struck his eight-year-old son on the head with the firearm. Anna Martinez

and her two daughters, who were five and two years old at the time, were also at

the Shop-N-Go at the time of the robbery. Anna testified that she put her wallet in

the trash can because it contained “all the money . . . [they] were going to use for

stuff.” She also testified that now she is scared when she goes into a store. Jose

Morales, the manager of the Shop-N-Go, testified that appellant pointed the

firearm at him and that he “felt [the firearm] on [his] head.” Morales testified that

appellant took money from the store’s register.

      Appellant presented mitigating evidence in the form of character testimony

from coaches and others people involved in his life. He also emphasized that he

was seventeen years old at the time of the offenses and that he used an unloaded

firearm at the time of the robberies. Appellant also pointed out that he had no

criminal record prior to the offenses in question.

      At the conclusion of the punishment hearing, the trial court pronounced

appellant’s sentence. The trial court assessed his punishment at forty years’

confinement for each of the two aggravated robberies and ten years’ confinement



                                          4
for the evading arrest charge, with the sentences to run concurrently. Appellant did

not object to the trial court’s assessment of punishment at that time.

      Appellant then filed a motion for new trial, asserting generally that “[t]he

verdict and sentence in this case are contrary to the law and the evidence[.]” His

motion for new trial specifically asserted that his trial counsel advised him to enter

an open plea to the court without fully explaining the consequences of the decision,

that trial counsel did not file an application for probation so that the court could

consider deferred-adjudication probation, and that trial counsel failed to present an

adequate defense during the punishment phase of the trial.

      At the hearing on the motion for new trial, appellant questioned trial counsel

about his advice regarding the various plea options. Trial counsel testified that

appellant did not want to have his punishment assessed by a jury and decided to

plead guilty to the trial court, and counsel agreed with appellant “after knowing the

facts of this case.” Counsel believed “that a jury could max him out. The range of

punishment was 5 years to life or 99 [years]. I felt a jury might give him a life

sentence in this case because of the terrible facts in the case.” Counsel testified that

he advised appellant that he would not be eligible for deferred adjudication and

that the minimum sentence was five years.

      The trial court denied the motion for new trial and certified appellant’s

limited right to appeal his sentence. This appeal followed.



                                           5
                         Waiver of Challenge to Sentence

      In his sole issue on appeal, appellant argues that his sentence was grossly

disproportional and unconstitutional. See, e.g., Solem v. Helm, 463 U.S. 277, 290,

103 S. Ct. 3001, 3009 (1983) (holding that Eighth Amendment of United States

Constitution requires proportionality between criminal sentence and defendant’s

convicted crime); Noland v. State, 264 S.W.3d 144, 151 (Tex. App.—Houston [1st

Dist.] 2007, pet. ref’d) (holding same). The State argues that appellant waived this

complaint by failing to object in the trial court. We agree.

      A defendant must object when his sentence is assessed or file a motion for

new trial to preserve a complaint of cruel and unusual punishment. See TEX. R.

APP. P. 33.1(a); Noland, 264 S.W.3d at 151–52 (holding defendant failed to

preserve Eighth Amendment complaint for appeal); Wynn v. State, 219 S.W.3d 54,

61 (Tex. App.—Houston [1st Dist.] 2006, no pet.) (holding that defendant’s failure

to object that punishment was cruel and unusual waived error); Solis v. State, 945

S.W.2d 300, 301 (Tex. App.—Houston [1st Dist.] 1997, pet. ref’d) (holding claim

of cruel and unusual punishment could not be raised for first time on appeal).

Failure to object properly to an error at trial, even a constitutional error, waives the

complaint on appeal. Perez v. State, 464 S.W.3d 34, 42 (Tex. App.—Houston [1st

Dist.] 2016, pet. ref’d); see Clark v. State, 365 S.W.3d 333, 339 (Tex. Crim. App.

2012).



                                           6
      Here, appellant did not object when the trial court pronounced his

punishment. Appellant did not raise a specific objection to the length of his

sentence in his motion for new trial or at the hearing on the motion for new trial.

Appellant cited his trial counsel’s failure to properly advise him regarding the

consequences of his guilty plea and counsel’s failure to obtain deferred-

adjudication probation for him. At no time did appellant object on the basis that his

punishment was excessive, disproportionate, cruel and unusual, or otherwise a

violation of his constitutional rights. See Sample v. State, 405 S.W.3d 295, 303–04

(Tex. App.—Fort Worth 2013, pet. ref’d) (holding that appellant failed to preserve

his claim under Eighth Amendment when he expressed “shock” at his “situation”

but did not raise specific objection claiming that his punishment violated

constitutional protections against cruel and unusual punishment).

      Nor was the trial court’s decision to assess appellant’s punishment at forty

years’ confinement for the aggravated robberies and ten years’ confinement for

evading arrest fundamental error, as these sentences fall within the applicable

statutory punishment ranges. See TEX. PENAL CODE ANN. §§ 12.32, 29.03(b) (West

2011) (aggravated robbery constitutes first-degree felony and is punishable by

confinement for between five and ninety-nine years); id. §§ 12.34, 38.04(b)(2)(A)

(evading arrest in vehicle constitutes third-degree felony and is punishable by

confinement for between two and ten years); see also Young v. State, 425 S.W.3d



                                         7
469, 474 (Tex. App.—Houston [1st Dist.] 2012, pet. ref’d) (concluding that

sentence at lower end of statutory range not fundamental error); Trevino v. State,

174 S.W.3d 925, 928 (Tex. App.—Corpus Christi 2005, pet. ref’d) (holding that

complaint of cruel and unusual punishment based on sentence that falls within

statutory punishment range does not constitute fundamental error).

      We overrule appellant’s sole issue on appeal.

                                   Conclusion

      We affirm the judgment of the trial court.




                                               Evelyn V. Keyes
                                               Justice

Panel consists of Justices Jennings, Keyes, and Brown.

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




                                           8
