                                 IN THE
                         TENTH COURT OF APPEALS

                               No. 10-12-00041-CR

MANUEL GARCIA,
                                                          Appellant
v.

THE STATE OF TEXAS,
                                                          Appellee



                          From the 40th District Court
                              Ellis County, Texas
                           Trial Court No. 35,813CR


                         MEMORANDUM OPINION

      In two issues, appellant, Manuel Lerma Garcia, challenges the punishment

assessed for his conviction for unlawful possession of a controlled substance in an

amount less than one gram, a state-jail felony. See TEX. HEALTH & SAFETY CODE ANN. §

481.115(b) (West 2010). We affirm.

                                     I.   BACKGROUND

      On March 19, 2011, Kristie Brewer of the Ellis County Sheriff’s Office received a

9-1-1 call referencing a gold-colored truck parked outside the caller’s residence. The
caller stated that she believed that the driver of the truck was “doing drugs inside the

vehicle.” Brewer dispatched officers to investigate the scene. Captain Brad Norman

and Deputy David Gardner of the Ellis County Sheriff’s Office responded to the scene.

Upon arrival, Captain Norman and Deputy Gardner observed a “brownish-gold”

colored Dodge truck parked off the roadway in front of 650 FM 983. The officers also

noticed that appellant was the only occupant of the truck. Captain Norman testified

that appellant appeared to be either asleep or passed out. To get appellant’s attention,

Captain Norman tapped on the driver’s side window with his hand and then his

flashlight. Eventually, appellant awoke.

         Officers used their flashlights to visually search the inside of the truck. Captain

Norman noticed that both of appellant’s “hands were clenched shut down on top of the

seat beside his legs.” For safety reasons, appellant was ordered to show his hands.

Appellant did not initially comply with the officers’ requests. However, appellant later

decided to open the door of the truck. In doing so, appellant opened his right hand,

and Captain Norman saw “something fall onto the seat.” This object was initially

identified as a “small off-white colored rocklike substance,” which Captain Norman

believed to be crack cocaine. Drew Fout, a forensic scientist with the Texas Department

of Public Safety, testified that the substance amounted to 0.05 grams of cocaine.

Appellant was subsequently arrested. Pursuant to an inventory search, officers also

found a crack pipe inside the truck.1



         The State also introduced recordings of telephone calls that appellant made to his wife and
         1

mother from jail. In these calls, appellant admitted that he had the cocaine. In addition, though he

Garcia v. State                                                                               Page 2
         At the conclusion of the guilt-innocence phase, the jury found appellant guilty of

the charged offense. During the punishment phase, the State introduced evidence of

appellant’s prior convictions for unauthorized use of a motor vehicle, taking a weapon

away from a peace officer, assault, failure to identify as a fugitive from justice, evading

arrest, and driving with a suspended license. Ultimately, the jury assessed punishment

at 500 days’ confinement in a state jail. This appeal followed.

                                              II.     ANALYSIS

         On appeal, appellant contends that his punishment is disproportionate to the

crime committed and that it violates the Eighth Amendment to the United States

Constitution and article I, section 13 of the Texas Constitution. See U.S. CONST. amend.

VIII; see also TEX. CONST. art. 1, § 13.

         A disproportionate-sentence claim must be preserved for appellate review. See

TEX. R. APP. P. 33.1(a)(1); Rhoades v. State, 934 S.W.2d 113, 120 (Tex. Crim. App. 1996)

(noting that constitutional rights, including the right to be free from cruel and unusual

punishment, may be waived); Mercado v. State, 718 S.W.2d 291, 296 (Tex. Crim. App.

1986) (en banc); see also Noland v. State, 264 S.W.3d 144, 151 (Tex. App.—Houston [1st

Dist.] 2007, pet. ref’d) (“[I]n order 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.”). To preserve a complaint for review, a



initially denied possessing cocaine at trial, appellant acknowledged on cross-examination that he did, in
fact, possess cocaine on the night in question.

Garcia v. State                                                                                   Page 3
party must have presented to the trial court a timely request, objection, or motion that

states the specific grounds for the desired ruling if they are not apparent from the

context of the request, objection, or motion. TEX. R. APP. P. 33.1(a)(1); Landers v. State,

402 S.W.3d 252, 254 (Tex. Crim. App. 2013); Sample v. State, 405 S.W.3d 295, 300 (Tex.

App.—Fort Worth 2013, pet. ref’d). Further, the trial court must have ruled on the

request, objection, or motion, either expressly or implicitly, or the complaining party

must have objected to the trial court’s refusal to rule. TEX. R. APP. P. 33.1(a)(2); Pena v.

State, 353 S.W.3d 797, 807 (Tex. Crim. App. 2011).

         At the sentencing hearing, appellant did not assert his disproportionate-sentence

claim. Moreover, appellant did not file a motion for new trial or otherwise present his

objection to the imposed sentence. As such, appellant has forfeited this complaint. See

TEX. R. APP. P. 33.1(a)(1); Clark v. State, 365 S.W.3d 333, 339 (Tex. Crim. App. 2012); see

also Noland, 264 S.W.3d at 151-52.

         And even if appellant had preserved this complaint, it lacks merit. Appellant’s

500-day sentence falls within the statutory range for his offense. See TEX. HEALTH &

SAFETY CODE ANN. § 481.115(b) (providing that unlawful possession of a controlled

substance in an amount less than one gram is a state-jail felony); see also TEX. PENAL

CODE ANN. § 12.35(a) (West 2011) (stating that the punishment range for a state-jail

felony is “confinement in a state jail for any term of not more than two years or less

than 180 days”). The trial court’s discretion to impose any punishment within the

prescribed range is essentially “unfettered.” Ex parte Chavez, 213 S.W.3d 320, 323 (Tex.

Crim. App. 2006). Punishment imposed within the statutory range is generally not

Garcia v. State                                                                       Page 4
subject to challenge for excessiveness.        See Dale v. State, 170 S.W.3d 797, 799 (Tex.

App.—Fort Worth 2005, no pet.) (“Generally, punishment assessed within the statutory

limits is not excessive, cruel, or unusual punishment.”). Further, nothing in the record

shows that appellant’s punishment, in light of his criminal history and the facts

surrounding the charged offense, was grossly disproportionate to the crime so as to

violate the Eighth Amendment of United States Constitution or article 1, section 13 of

the Texas Constitution. See U.S. CONST. amend. VIII; TEX. CONST. art. 1, § 13; Solem v.

Helm, 463 U.S. 277, 284, 103 S. Ct. 3001, 3006, 77 L. Ed. 2d 637 (1983); McGruder v.

Puckett, 954 F.2d 313, 315-17 (5th Cir. 1992) (setting forth the analysis for proportionality

of punishment); Moore v. State, 54 S.W.3d 529, 542 (Tex. App.—Fort Worth 2001, pet.

ref’d). Based on the foregoing, we overrule appellant’s issues on appeal.

                                        III.     CONCLUSION

         We affirm the judgment of the trial court.



                                                    AL SCOGGINS
                                                    Justice


Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Affirmed
Opinion delivered and filed April 10, 2014
Do not publish
[CR25]




Garcia v. State                                                                        Page 5
