Brandon Beller v. State

• Court: Court of Appeals of Texas
• Decided: January 15, 2004
• Docket: 11-03-00261-CR
• Status: Published

Opinion

                                                             11th Court of Appeals

                                                                  Eastland, Texas

                                                                        Opinion

Brandon Beller

Appellant

Vs.                   No. 11-03-00261-CR B Appeal from Harris County

State of Texas

Appellee

The trial court convicted Brandon Beller, upon his plea of guilty, of the offense of aggravated robbery.^[1]  A plea bargain agreement was not reached.  The trial court assessed his punishment at confinement for 25 years.^[2]  We affirm.

In his sole issue on appeal, appellant challenges the punishment assessed.  While he recognizes that the 25-year sentence was within the range authorized by law, appellant contends that the length of the sentence constitutes cruel and unusual punishment.  Appellant also contends that, since no injuries were sustained in the robbery, the sentence is grossly disproportionate.  The State responds by contending that appellant has waived his complaint.  We agree.

TEX.R.APP.P. 33.1 provides that, to preserve a complaint for appellate review, the complaint must first be raised to the trial court through an objection, a request, or a motion.  Complaints pertaining to constitutional rights may be waived by failing to bring them to the trial court=s attention.  Broxton v. State, 909 S.W.2d 912, 918 (Tex.Cr.App.1995); Briggs v. State, 789 S.W.2d 918, 924 (Tex.Cr.App.1990); Solis v. State, 945 S.W.2d 300 (Tex.App. - Houston [1st Dist.] 1997, pet=n ref=d).  Failure to complain at the trial court level that the length of sentence is cruel and unusual punishment waives the issue for appellate review.  Duren v. State, 87 S.W.3d 719, 732 (Tex.App. - Texarkana 2002, pet=n ref=d); Jacobs v. State, 80 S.W.3d 631, 632-33 (Tex.App. - Tyler 2002, no pet=n); Nicholas v. State, 56 S.W.3d 760, 768 (Tex.App. - Houston [14th Dist.] 2001, pet=n ref=d); Keith v. State, 975 S.W.2d 433, 434 (Tex.App. - Beaumont 1998, no pet=n); Solis v. State, supra; Quintana v. State, 777 S.W.2d 474 (Tex.App. - Corpus Christi 1989, pet=n ref=d). 

Appellant did not object at trial and did not file a motion for new trial.  Therefore, appellant has not preserved his complaint for appellate review. 

Moreover, we note that nothing in the record supports appellant=s complaint that a 25-year sentence is cruel and unusual punishment. TEX. PENAL CODE ANN. ' 29.03 (Vernon 2003)  provides that a robbery becomes an aggravated offense when a deadly weapon is used or exhibited, when serious bodily injury occurs, or when bodily injury occurs to a victim who is 65 years of age or older or who is a disabled person.  The fact that the victim did not suffer any physical injury does not make the robbery in this case a non-aggravated offense or the punishment assessed disproportionate.  Section 29.03(a)(2).  The sole issue is overruled.

The judgment of the trial court is affirmed.

W. G. ARNOT, III

CHIEF JUSTICE

January 15, 2004

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

Panel consists of: Arnot, C.J., and

Wright, J., and McCall, J.        

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^[1]TEX. PENAL CODE ANN. ' 29.03 (Vernon 2003) defines the offense and declares it to be a first degree felony.

^[2]TEX. PENAL CODE ANN. ' 12.32 (Vernon 2003) provides that a person convicted of a first degree felony shall be confined for life or a period of time not less than 5 years and not more than 99 years.  An optional fine not to exceed $10,000 is also authorized.