                              NUMBER 13-11-00055-CR

                                COURT OF APPEALS

                        THIRTEENTH DISTRICT OF TEXAS

                          CORPUS CHRISTI - EDINBURG


JULIO CESAR RUIZ,                                                           Appellant,

                                             v.

THE STATE OF TEXAS,                                                           Appellee.


                      On appeal from the 24th District Court
                           of Refugio County, Texas.


                              MEMORANDUM OPINION

    Before Chief Justice Valdez and Justices Rodriguez and Garza
            Memorandum Opinion by Chief Justice Valdez
         Appellant, Julio Cesar Ruiz, pleaded guilty to the first-degree felony offense of

possession of marihuana in the amount of 2,000 pounds or less but more than fifty

pounds and was sentenced to twenty years in the Institutional Division of the Texas

Department of Criminal Justice. See TEX. HEALTH & SAFETY CODE ANN. § 481.121 (West

2010).      By one issue, Ruiz contends the twenty-year sentence was “grossly
disproportionate” to his part in the crime and, thus, violated the Eighth Amendment of

the U.S. Constitution. We affirm.

                                    I.      BACKGROUND

       On March 26, 2010, a Texas State Trooper conducted a traffic stop in Refugio

County with Ruiz in the passenger seat of the vehicle.                      The Trooper found

approximately fifty-six pounds of marihuana in the spare tire of the vehicle. The driver

and Ruiz were arrested for possession of marihuana. See id.

       On November 23, 2010, Ruiz entered an open plea of guilty to the possession of

marihuana charge, a second-degree felony. The State sought to enhance the charge

because Ruiz had a previous felony conviction.1 Due to the previous felony conviction,

the second-degree felony charge was enhanced to a first-degree felony charge. See

TEX. PENAL CODE ANN. § 12.42 (West 2010).

       At the punishment hearing on December 15, 2010, Ruiz’s counsel asked the trial

court to consider deferred adjudication at the court’s discretion. The State sought a

sentence of at least thirty years. The court, after hearing arguments, sentenced Ruiz to

twenty years in the Institutional Division of the Texas Department of Criminal Justice

with a fine of $5,000. This appeal followed.

                    II.     CONSTITUTIONALITY OF THE SENTENCE

       In his sole issue, Ruiz contends that his sentence of twenty years for his “minor

role” in the crime constituted “cruel and unusual” punishment in violation of the Eighth

Amendment.       Specifically, it appears Ruiz is arguing that his sentence is grossly

disproportionate to the convicted offense.

       1
         At the hearing, Ruiz pleaded “true” to the enhancement paragraph alleging he had a previous
2005 felony conviction for sexual assault in Hidalgo County, Texas.


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A.     APPLICABLE LAW

       The Eighth Amendment of the United States Constitution provides that

“[e]xcessive bail shall not be required, nor excessive fines, nor cruel and unusual

punishment inflicted.” See U.S. CONST. amend. VIII. The Eighth Amendment applies to

punishments imposed by state courts though the Due Process Clause of the Fourteenth

Amendment. See U.S. CONST. amend. XIV. Yet, it is possible for this right, and every

constitutional or statutory right, to be waived by a “failure to object.” Smith v. State, 721

S.W.2d 844, 855 (Tex. Crim. App. 1986).

       In order to preserve an error for appellate review, the record must demonstrate

the error was made known to the trial court by a “timely request, objection, or motion”

that stated the specific grounds for objection and that the court ruled on that ground.

TEX. R. APP. P. 33.1(a); Rezac v. State, 782 S.W.2d 869, 870 (Tex. Crim. App. 1990);

Kim v. State, 283 S.W.3d 473, 475 (Tex. App.—Fort Worth 2009, pet. ref’d) (“To

preserve for appellate review a complaint that a sentence is grossly disproportionate,

constituting 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.”).

If a party does not specifically object to an alleged disproportionate sentence in the trial

court or through post-trial motions, then he has failed to preserve the error for appellate

review. Jacoby v. State, 227 S.W.3d 128, 130 (Tex. App.—Houston [1st Dist.] 2006,

pet. ref’d) (concluding that the defendant did not preserve the disproportionality of the

sentences issue because it was raised for the first time on appeal); Quintana v. State,

777 S.W.2d 474, 479 (Tex. App.—Corpus Christi 1989, pet. ref’d) (holding claim of

“cruel and unusual” punishment issue was waived because of “failing to object”).



                                             3
A. DISCUSSION

        Ruiz contends that his “minor role” of being a passenger in the vehicle did not

warrant the twenty-year sentence and violated his Eighth Amendment right.2 Before we

address this issue, we first examine the record to determine if Ruiz has preserved this

issue for appellate review. TEX. R. APP. P. 33.1(a). At the punishment hearing, neither

Ruiz nor his attorney objected to the sentence. After the hearing, Ruiz did not file any

post-trial motions or objections claiming his sentence violated the Eighth Amendment.

The Eighth Amendment issue was raised for the first time with this Court and was not

raised to the trial court. Thus, we conclude that Ruiz did not preserve this issue for

appellate review, and we overrule his issue on this ground alone. See Jacoby, 227

S.W.3d at 130; Quintana, 777 S.W.2d at 479.

         Nonetheless, because the twenty-year sentence falls within the statutory limits

for a first-degree felony conviction, we conclude that the sentence was not

unconstitutional. See TEX. PENAL CODE ANN. § 12.32 (West 2010). Ruiz pleaded guilty

to second-degree felony possession of marihuana and “true” to a previous felony

conviction. The previous felony conviction enhanced the second-degree felony to a

first-degree felony. See TEX. PENAL CODE ANN. § 12.42. Ruiz’s twenty-year sentence

falls within the five to ninety-nine year range prescribed for first-degree felonies.3 See

TEX. PENAL CODE ANN. § 12.32(a). The punishment imposed was within the statutory

limits, which is not considered excessive, cruel, or unusual. See Trevino v. State, 174


        2
           Ruiz points out that the driver of the vehicle received deferred adjudication for the second-
degree felony, whereas he, a mere passenger, received twenty years. In his brief, Ruiz does not
acknowledge or address the distinction between the classification of his offense as a first-degree felony
and the classification of the driver’s offense as a second-degree felony.
         3
           Although the issue is not raised on appeal, we note that the trial court’s $5,000 fine also falls
within the statutory limits for a first-degree felony. See TEX. PENAL CODE ANN. § 12.32(b). The maximum
fine a court can impose upon a first-degree felony conviction is $10,000. Id.

                                                     4
S.W.3d 925, 928 (Tex. App.—Corpus Christi 2005, pet. ref’d).        Therefore, for the

reasons stated above, even if the issue had been preserved, we would overrule it.

                                 III.   CONCLUSION

      The trial court’s judgment is affirmed.


                                                     _____________________
                                                     ROGELIO VALDEZ
                                                     Chief Justice

Do not Publish.
TEX. R. APP. P. 47.2(b)
Delivered and filed the
14th day of July, 2011.




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