Opinion

Simon Vargas Fajardo v. State

Court
Texas Court of Appeals, 1st District (Houston)
Filed
May 24, 2012
Status
Published
Cited by
0 cases
Authority
More cited than 42.2%

The opinion

Opinion issued May 24, 2012.

In The

Court of

Appeals

For The

First District

of Texas

————————————

NO. 01-12-00123-CR

———————————

Simon Vargas Fajardo , Appellant

V.

The State of

Texas , Appellee

On Appeal from the 209th District Court

Harris County, Texas

Trial Court Case No. 1312168

MEMORANDUM OPINION

Simon

Vargas Fajardo pled guilty to aggravated sexual assault of a child and was

sentenced to forty years’ confinement. Fajardo contends that the sentence is grossly

disproportionate to the offense, constituting cruel and unusual punishment

under the Texas and United States constitutions. We affirm.

Background

Fajardo

pled guilty to aggravated sexual assault of a child without an agreed recommendation

as to punishment. After a presentence investigation, the trial court held a

sentencing hearing. At the hearing, neither party objected to the presentencing

investigation report or offered any evidence. [1] The trial court sentenced

Fajardo to forty years’ confinement.Fajardo did not object to his sentence.

Fajardo contends the trial court’s punishment was grossly

disproportionate to the crime he committed and thus violated the

Eighth Amendment of the United States Constitution and Article 1, Section 13 of

the Texas Constitution . Fajardo concedes that the

trial court’s sentence is “within the range of punishment authorized by the

Texas Legislature for first degree felonies” and that a punishment within the

statutory range generally is not excessive, cruel, or unusual under the Texas Constitution.

See Delacruz v. State , 167 S.W.3d

904, 906 (Tex. App.—Texarkana 2005, no pet.) . He states, however, that his sentence may nevertheless be

grossly disproportionate under the federal constitutional standard.

The State responds that Fajardo waived this alleged error by

failing to make an objection at trial.Fajardo asserts that he may raise his

complaint for the first time on appeal.

P reservation of Error

To preserve for appellate review a complaint that a sentence amounts to 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)(1); Noland v. State , 264 S.W.3d 144, 151 (Tex. App.—Houston [1st Dist.] 2007,

pet. ref’d); Wynn v. State , 219 S.W.3d 54, 61 (Tex. App.—Houston [1st Dist.] 2006, no pet.); Solis v. State , 945 S.W.2d 300, 301 (Tex. App.—Houston

[1st Dist.] 1997, pet. ref’d) . In the

trial court, Fajardo did not object to his sentence or otherwise argue

that his sentence violated his constitutional rights . He therefore failed to

preserve this alleged error. See Noland , 264 S.W.3d at 151 ; Wynn , 219 S.W.3d at 61 ; Solis , 945 S.W.2d at 301 .

Relying on Meadoux v. State ,

325 S.W.3d 189 , 193 n.5 (Tex. Crim. App. 2010), Fajardo argues that he is

entitled to raise his cruel-and-unusual-punishment argument for the first time

on appeal. This Court has repeatedly rejected that argument,

as has our sister court. See Farris v. State , No. 01-11-00942-CR, 2012 WL 1379668 ,

at *3 (Tex. App.—Houston [1st Dist.] Apr. 19, 2012, no. pet. h.) (mem. op., not

designated for publication); Quezada v. State ,

No. 01-11-00262-CR, 2011 WL 6015698 , at *1 (Tex. App.—Houston [1st Dist.] Dec.

1, 2011, pet. ref’d) (mem. op., not designated for publication); Williams v.

State , No. 14-11-00139-CR, 2011 WL 6287972 , at *2 (Tex. App.—Houston [14th

Dist.] Dec. 15, 2011, pet. ref’d) (mem.

op., not designated for publication) ; Wilson v. State , No. 14-11-00555-CR, 2011 WL 5006059 ,

at *1 (Tex. App.—Houston [14th Dist.] Oct. 20, 2011, pet. ref’d) (mem.

op., not designated for publication) ; see also Ham v. State , 355 S.W.3d 819, 825

(Tex. App.—Amarillo 2011, pet. ref’d).

Fajardowaived his constitutional

challenges to the severity of his sentence by failing to raise them before the

trial court.

Conclusion

Fajardo failed to preserve an

appealable error as to the constitutionality of his sentence, which was within

the statutory range of punishment available for the offense he committed.

Accordingly, we affirm the trial court’s judgment.

Harvey

Brown

Justice

Panel

consists of Justices Bland, Massengale, and Brown.

Do

not publish. Tex. R. App. P. 47.2( b).

[1] The statutory range of punishment for

a first-degree felony is “not more than 99 years or less than 5 years,” with

the option for a fine not to exceed $10,000. See Tex. Penal Code Ann.

§ 12.32 (West 2011).

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

A word about cookies

We need a few to keep you signed in and the library working. The rest help us see which pages people use and where they get stuck. They stay off unless you say yes.