                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                              NO. 02-15-00293-CR


JOSE LUIS CHAVEZ                                                    APPELLANT

                                         V.

THE STATE OF TEXAS                                                       STATE


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          FROM THE 415TH DISTRICT COURT OF PARKER COUNTY
                     TRIAL COURT NO. CR15-0321

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                         MEMORANDUM OPINION1

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      Appellant Jose Luis Chavez appeals his conviction for driving while

intoxicated (DWI) and twenty-year sentence. Because we conclude Chavez has

defaulted his claim that his sentence was disproportionate and unconstitutionally

cruel and unusual, we affirm the trial court’s judgment.




      1
       See Tex. R. App. P. 47.4.
      A grand jury indicted Chavez with felony DWI, based on two prior

convictions for DWI in 1980 and 2002, and alleged felony enhancements

regarding Chavez’s DWI conviction, “Third or More,” in 2010 and his 1992

conviction for possession of twenty-nine pounds of marijuana. See Tex. Penal

Code Ann. §§ 12.42(b), 49.04(a), 49.09(b)(2) (West Supp. 2015).         Chavez

pleaded guilty to the charged offense and true to the possession enhancement.

In exchange, the State agreed to waive the DWI enhancement so that the

available range of punishment would be for a second-degree felony, not a first-

degree felony. See id. § 49.09(b)(2). The trial court accepted Chavez’s plea,

and Chavez elected to have a jury assess his punishment.

      At the trial on punishment, the jury heard that Chavez stipulated to an

extensive criminal history, including convictions for DWI, possession of

marijuana, possession or transportation of marijuana, driving while his license

was suspended, and driving while his license was invalid. Chavez called his wife

and two of his children as witnesses who testified that although he was an

alcoholic, Chavez was a good father, he was a good provider, and his family

needs him to help support the family.       The jury assessed his punishment at

twenty years’ confinement, the maximum length of confinement allowed for a

second-degree felony. See id. § 12.33(a) (West 2011).

      On appeal, Chavez argues that his sentence is unconstitutionally cruel and

unusual and disproportionate to the crime he committed because he is a hard

worker and his family needs him to help support them both monetarily and


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emotionally. However, Chavez failed to object to the sentence before the jury

was discharged,2 did not object to the sentence before the trial court imposed the

sentence, and did not file a motion for new trial raising this issue. Thus, he has

procedurally defaulted this claim.3 See Tex. R. App. P. 33.1(a)(1)(A); Sample v.

State, 405 S.W.3d 295, 303–04 (Tex. App.—Fort Worth 2013, pet. ref’d). We

overrule Chavez’s sole issue and affirm the trial court’s judgment. See Tex. R.

App. P. 43.2(a).


                                                    /s/ Lee Gabriel

                                                    LEE GABRIEL
                                                    JUSTICE

PANEL: LIVINGSTON, C.J.; DAUPHINOT and GABRIEL, JJ.

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

DELIVERED: June 23, 2016




      2
        When the trial court asked if there was “anything prior to discharge of the
jury,” Chavez’s counsel stated that there was not.
      3
        Even if properly preserved, this argument would have no merit because
the sentence was within the range of applicable punishments and was not
grossly disproportionate to the underlying offense in light of his extensive criminal
history. See, e.g., Miles v. State, Nos. 2-09-251-CR thru 2-09-256-CR, 2010 WL
1730862, at *2–3 (Tex. App.—Fort Worth Apr. 29, 2010, pet. ref’d) (mem. op.,
not designated for publication); McCarthy v. State, No. 03-08-00132-CR,
2009 WL 3048701, at *4 (Tex. App.—Austin Sept. 24, 2009, no pet.) (mem. op.,
not designated for publication); Trevino v. State, 174 S.W.3d 925, 928–29 (Tex.
App.—Corpus Christi 2005, pet. ref’d).


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