                           COURT OF APPEALS
                           SECOND DISTRICT OF TEXAS
                                FORT WORTH

                              NO. 02-17-00383-CR
                              NO. 02-17-00384-CR


DUSTIN LEE WATERS                                                   APPELLANT

                                        V.

THE STATE OF TEXAS                                                        STATE

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          FROM THE 297TH DISTRICT COURT OF TARRANT COUNTY
                 TRIAL COURT NOS. 1448778D, 1478619D

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                           MEMORANDUM OPINION 1

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      In a single issue, Appellant Dustin Lee Waters appeals his convictions for

robbery (Cause No. 1478619D) and theft (Cause No. 1448778D).            See Tex.

Penal Code Ann. § 29.02 (West 2011), § 31.03 (West Supp. 2017). Because he

failed to preserve his argument by presenting it to the trial court, we affirm the

trial court’s judgments.

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       See Tex. R. App. P. 47.4.
                                   Background

      In June 2016, Appellant was charged with theft in Cause No. 1448778D.

He received deferred adjudication in exchange for two years’ community

supervision. While on community supervision, Appellant violated its terms by

robbing then-79-year-old Helen Bowie in the parking garage of Cook Children’s

Hospital.

      On the evening of November 21, 2016, after finishing her shift at her job in

Cook’s gift shop, Bowie walked to her car, which was parked in a handicapped

spot because Bowie used a walker. As she placed her walker in the back of her

SUV, closed the door, and began to open the door to the driver’s seat, Appellant

suddenly approached her from behind, touched her on both shoulders, and said,

“Stop right there. That’s as far as you’re going. Give me your keys.” Bowie

resisted, responding, “Oh, hell, no. You’re not getting my keys[!]”       Although

admittedly scared, Bowie began to fight and scream, “Help me[!] He is trying to

steal my car[!]” thinking to herself, “Well, if he’s going to kill me, I’m going out

fighting and screaming.”

      Bowie and Appellant wrestled over her car keys and somehow—Bowie

was unsure if she stumbled and fell or if Appellant pushed her—Bowie ended up

on the floor of the parking garage and Appellant grabbed her keys. Appellant

jumped into the car and started it but was thwarted when one of Bowie’s

coworkers drove his own vehicle behind Bowie’s, blocking Appellant and the




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vehicle in the parking space. Appellant backed into the coworker’s car, grabbed

a GPS device out of the car, got out, and ran away.

        Appellant was later arrested and charged with aggravated robbery, theft,

injury to an elderly person, and theft of a vehicle in Cause No. 1478619D. Based

in part on those charges, the State petitioned to proceed to adjudication in Cause

No. 1448778D. Appellant pleaded true to the allegations supporting adjudication

in Cause No. 1448778D and pleaded guilty to the lesser-included offense of

robbery in Cause No. 1478619D.

        The trial court conducted a combined sentencing hearing. In addition to

describing the events of the robbery, Bowie testified to its immediate and ongoing

effects.   Initially, because Appellant escaped with her GPS device, which

contained her home address, and because she could not find her house keys

after the incident, Bowie feared that Appellant might come to her house, so she

had her locks changed the day after the incident. Physically, Bowie sustained a

scrape on her hand from the altercation and testified that her body was sore all

over for four or five days. Mentally, Bowie suffered flashbacks after the incident,

became much more cautious and aware of her surroundings, and felt as though

her privacy had been violated. She explained that because she “never felt safe

in the car again,” she traded it in. She never returned to the parking garage,

instead making alternative parking arrangements so that she felt safe going to

work.




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      Bowie testified, “I would like [Appellant] to be put away for a while,

because if he would do it to me, an 80-year-old woman, and I was a strong

woman, what would he do to a young woman that maybe had an armful of

children.”

      The trial court convicted Appellant of theft in Cause No. 1448778D and

sentenced him to two years’ imprisonment. In Cause No. 1478619D, the trial

court found Appellant guilty of robbery and sentenced him to 20 years’

confinement, the maximum sentence available, “because [he] victimized an 80-

year-old lady.”

                                   Discussion

      Appellant argues that the trial court erred in sentencing him to the

maximum sentence available. He argues in particular that the punishment is

disproportionate to the crime because of “the minor injury to the victim, which

may or may not have been caused by Appellant.”

      Even if we were to agree with Appellant’s premise, his argument fails

because he did not object to the sentence at the time it was imposed by the trial

court. See Tex. R. App. P. 33.1(a)(1)(A) (requiring that a party make a timely

request, objection, or motion in order to preserve a complaint for appellate

review). It is well-established that a complaint that a sentence is disproportionate

or constitutes cruel and unusual punishment must be raised in the trial court or it

is forfeited. Rhoades v. State, 934 S.W.2d 113, 120 (Tex. Crim. App. 1996). We

therefore overrule Appellant’s sole issue.


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                                Conclusion

      Having overruled Appellant’s only issue on appeal, we affirm the trial

court’s judgments.


                                              /s/ Bonnie Sudderth

                                              BONNIE SUDDERTH
                                              CHIEF JUSTICE

PANEL: SUDDERTH, C.J.; MEIER and GABRIEL, JJ.

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

DELIVERED: July 12, 2018




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