Opinion issued March 15, 2018




                                 In The

                           Court of Appeals
                                 For The

                       First District of Texas
                         ————————————
                           NO. 01-17-00445-CR
                        ———————————
                 JUAN GUSTAVO VAZQUEZ, Appellant
                                   V.
                    THE STATE OF TEXAS, Appellee


                 On Appeal from the 209th District Court
                         Harris County, Texas
                     Trial Court Case No. 1466142


                       MEMORANDUM OPINION

     After appellant, Juan Gustavo Vazquez, without an agreed punishment

recommendation from the State, pleaded guilty to the offense of aggravated
robbery,1 the trial court assessed his punishment at confinement for twelve years. In

his sole issue, appellant contends that the trial court erred in imposing an excessive

sentence.2

      We affirm.

                                    Background

      After appellant pleaded guilty, the trial court reset the case for a pre-sentence

investigation (“PSI”) hearing and ordered preparation of a PSI report.

      At the PSI hearing, the complainant, Jorge Perez, testified that on April 25,

2015, when he arrived at the Latino Sports Bar on Airline Drive and got out of his

van, he “felt somebody . . . threatening him” with a firearm. Two people with

firearms approached him, put a firearm to his head, and demanded his keys, wallet,

and cellular telephone. The complainant was afraid and gave the individuals the

requested items. He then threw himself on the ground, as he heard shots being fired.

The complainant did not know who was firing the shots, but appellant got into the

complainant’s van and drove away.

      The complainant further testified that since the aggravated robbery he is afraid

for himself and his family. And he requested that appellant receive “the maximum

punishment because [he] could have died that day.”


1
      See TEX. PENAL CODE ANN. § 29.03(a)(2) (Vernon 2011).
2
      See U.S. CONST. amend. VIII; TEX. CONST. art. I, § 13.

                                          2
      Appellant, in regard to the aggravated robbery, testified that he did put a

firearm to the complainant’s head and take his keys, money, and cellular telephone.

And although he heard shots being fired, he did not fire any shots with his firearm.

Appellant did, however, drive off in a van, which he did not own. He also did not

immediately stop the van when law enforcement officers attempted to pull him over.

According to appellant, he was scared, nervous, drunk, and “on pills” at the time,

and he did not “want to go back to jail.” Eventually, during the law enforcement

officers’ pursuit, appellant lost control of the van, crashed it, and tried to run away.

      Appellant further testified that since the aggravated robbery, he has

“straightened out” his life and he has “people that depend on [him] now.” He

currently owns an auto sales business, has a passion for selling cars, pays taxes, and

is supporting his fiancé and child.

                                 Standard of Review

      We review a sentence imposed by a trial court for an abuse of discretion.

Buerger v. State, 60 S.W.3d 358, 363 (Tex. App.—Houston [14th Dist.] 2001, pet.

ref’d) (citing Jackson v. State, 680 S.W.2d 809, 814 (Tex. Crim. App. 1984)).

Generally, we will not disturb a sentence assessed within the proper statutory

punishment range. Id.




                                           3
                          Cruel and Unusual Punishment

      In his sole issue, appellant argues that the trial court erred in imposing an

excessive sentence, resulting in cruel and unusual punishment, because “a sentence

of 12 years is not warranted by . . . the evidence produced during the [PSI] hearing,”

he “d[oes] not have an extensive criminal history” or “a history of committing

violent crimes,” he “took responsibility for committing the offense,” and he is “on

the path of being a good and productive citizen.” See U.S. CONST. amend. VIII; TEX.

CONST. art. I, § 13. The State asserts that appellant has not preserved his complaint

for appellate review.

      The Eighth Amendment of the United States Constitution and Article I,

section 13 of the Texas Constitution require that a criminal sentence be proportionate

to the crime for which a defendant has been convicted.3 Solem v. Helm, 463 U.S.

277, 290, 103 S. Ct. 3001, 3009 (1983); Noland v. State, 264 S.W.3d 144, 151 (Tex.

App.—Houston [1st Dist.] 2007, pet. ref’d); Baldridge v. State, 77 S.W.3d 890, 893

(Tex. App.—Houston [14th Dist.] 2002, pet. ref’d); see U.S. CONST. amend. VIII;


3
      Although appellant bases his argument on both the United States and Texas
      Constitutions, he argues the two provisions together, providing no separate
      argument under the Texas Constitution or any argument as to why the Texas
      Constitution provides more protection than the United States Constitution. See
      Heitman v. State, 815 S.W.2d 681, 690 n.23 (Tex. Crim. App. 1991); Rivera v. State,
      363 S.W.3d 660, 678 n.12 (Tex. App.—Houston [1st Dist.] 2011, no pet.). Our
      courts have consistently concluded that there is “no significance in the difference”
      between the two constitutional provisions. Cantu v. State, 939 S.W.2d 627, 645
      (Tex. Crim. App. 1997).

                                           4
TEX. CONST. art. I, § 13. Texas courts have generally held that a punishment that

falls within the limits prescribed by a valid statute is not excessive, cruel, or unusual.

See, e.g., State v. Simpson, 488 S.W.3d 318, 323 (Tex. Crim. App. 2016); Ajisebutu

v. State, 236 S.W.3d 309, 314 (Tex. App.—Houston [1st Dist.] 2007, pet. ref’d)

(“Generally, a sentence within the statutory range of punishment for an offense will

not be held cruel or unusual under the Constitution of either Texas or the United

States.”).

       In order to preserve for appellate review a complaint of cruel and unusual

punishment, a defendant must present to the trial court a timely request, objection,

or motion stating the specific grounds for the ruling desired. See TEX. R. APP. P.

33.1(a); Ladd v. State, 3 S.W.3d 547, 564 (Tex. Crim. App. 1999) (concluding

defendant did not preserve cruel-and-unusual-punishment complaint for appellate

review); Solis v. State, 945 S.W.2d 300, 301 (Tex. App.—Houston [1st Dist.] 1997,

pet. ref’d); see also Nicholas v. State, 56 S.W.3d 760, 768 (Tex. App.—Houston

[14th Dist.] 2001, pet. ref’d) (specific objection must be made in trial court to

preserve federal or state constitutional claim of cruel and unusual punishment). A

specific objection to the trial court brings the trial court’s attention to a possible error

that it may correct. See Solis, 945 S.W.2d at 301 (“The purpose for the rule is to

allow opposing counsel to remove the objection or the trial court to cure any harm.”).




                                             5
      Here, after the trial court announced his sentence, appellant did not object,

obtain a ruling from the trial court, or raise his cruel-and-unusual-punishment

complaint in a motion for new trial. See TEX. R. APP. P. 33.1(a); Noland, 264 S.W.3d

at 151–52; Solis, 945 S.W.2d at 301. Appellant concedes in his brief that “he did

not lodge any objection at the time of sentencing” and “[t]he right to be free from

cruel and unusual punishment may be waived by a failure to make a timely objection

to the punishment.” (Emphasis omitted.) However, he also asserts that “this Court

is not strictly precluded from considering the cruel and unusual nature of . . . [his]

punishment even though there was no objection after the sentenc[e] was

pronounced.”

      Appellant fails to provide any analysis or authority in support of his argument

that the Court may still consider his cruel-and-unusual-punishment complaint,

despite the lack of an objection or a motion for new trial. See TEX. R. APP. P. 38.1(i)

(appellant’s brief “must contain a clear and concise argument for the contentions

made, with appropriate citations to authorities and to the record”). An appellant’s

argument that is not adequately briefed is waived. See id.; Lucio v. State, 351 S.W.3d

878, 896–97 (Tex. Crim. App. 2011) (point of error inadequately briefed “presents

nothing for review”).

      Accordingly, because appellant did not timely object in the trial court or raise

his cruel-and-unusual-punishment complaint in a motion for new trial, we hold that


                                          6
he has not preserved his complaint for our review.4 See TEX. R. APP. P. 33.1(a);

Noland, 264 S.W.3d at 151–52; Solis, 945 S.W.2d at 301.

                                     Conclusion

      We affirm the judgment of the trial court.




                                               Terry Jennings
                                               Justice

Panel consists of Justices Jennings, Keyes, and Higley.

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




4
      We note that appellant’s punishment of confinement for twelve years fell near the
      low end of the applicable statutory range of punishment for the offense of
      aggravated robbery—a first-degree felony offense punishable by “imprisonment in
      the Texas Department of Criminal Justice for life or for any term of not more than
      99 years or less than 5 years.” See TEX. PENAL CODE ANN. § 12.32(a) (Vernon
      2011) (punishment for first-degree felony offense), § 29.03(a)(2), (b) (aggravated
      robbery constitutes first-degree felony offense); see, e.g., Jacoby v. State, 227
      S.W.3d 128, 131–33 (Tex. App.—Houston [1st Dist.] 2006, pet. ref’d) (holding
      defendant waived challenge to alleged disproportionate sentence where he did not
      object in trial court or through post-trial motion and noting punishment within
      statutory limits not cruel and unusual). And appellant does not contend, nor do we
      conclude, that his sentence resulted from “fundamental” error such that he was not
      required to object to preserve error. See Young v. State, 425 S.W.3d 469, 473–74
      (Tex. App.—Houston [1st Dist.] 2012, pet. ref’d) (holding no fundamental error
      where defendant convicted of first-degree felony offense and sentenced on lower
      end of statutory range of punishment authorized for such offenses).

                                           7
