Emelio Palacio v. State

• Court: Court of Appeals of Texas
• Decided: March 27, 2015
• Docket: 05-14-00150-CR
• Status: Published

Opinion

Affirmed and Opinion Filed March 27, 2015

In The Court of Appeals Fifth District of Texas at Dallas No. 05-14-00150-CR No. 05-14-00151-CR

EMELIO PALACIO, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the Criminal District Court No. 5 Dallas County, Texas Trial Court Cause Nos. F12-34223-L, F13-31254-L

MEMORANDUM OPINION Before Justices Francis, Lang-Miers, and Whitehill Opinion by Justice Francis

Emelio Palacio appeals from his aggravated robbery and possession of methamphetamine

convictions. In three issues, he contends the trial court erred when it failed to conduct a separate

punishment hearing after adjudicating his guilt and the sentences violate the United States and

Texas constitutions. We affirm the trial court’s judgments.

In June 2013, appellant waived a jury and pleaded guilty to aggravated robbery with a

deadly weapon, a firearm. The trial court deferred adjudication of guilt, placed appellant on

community supervision for eight years, and assessed a $1,000 fine. The State later moved to

adjudicate guilt, alleging appellant violated several conditions of his community supervision including an October 2013 possession of methamphetamine offense. Appellant pleaded true to

the allegations at the hearing on the motion. The trial court found the allegations true,

adjudicated appellant guilty of aggravated robbery and sentenced him to twenty-five years in

prison.

At the same hearing, appellant waived a jury and pleaded guilty to possession of

methamphetamine in an amount of one gram or more but less than four grams. The trial court

found appellant guilty and assessed punishment at five years in prison.

In his first issue, appellant asserts the trial court did not “allow” him an opportunity to

have a proper sentencing hearing after adjudicating him guilty of aggravated robbery. The State

responds that appellant has waived appellate review and alternatively, the trial court properly

sentenced him after adjudicating his guilt.

Appellant was entitled to a punishment hearing after the adjudication of his guilt. See

Vidaurri v. State, 49 S.W.3d 880, 885 (Tex. Crim. App. 2001). However, appellant’s right to a

separate punishment hearing is a statutory right that can be waived. See id. at 886. Appellant did not

complain about the lack of a separate punishment hearing either at the time he was adjudicated guilty

or in a motion for new trial. See TEX. R. APP. P. 33.1(a)(1); Castaneda v. State, 135 S.W.3d 719,

723 (Tex. App.—Dallas 2003, no pet.).

Moreover, the record reflects appellant presented punishment evidence in both cases. See

Hardeman v. State, 1 S.W.3d 689, 691 (Tex. Crim. App. 1999). During the hearing, appellant

testified and said he had a “drug problem,” and read a letter he wrote to the trial judge asking for

“rehab.” Appellant also presented testimony from his mother, who asked the trial judge to get

appellant “some help.” We overrule his first issue.

In his second and third issues, appellant contends the sentences are grossly

disproportionate to the offenses and inappropriate to the offender, in violation of the United

‐2‐ States and Texas constitutions. Appellant asserts he has a “serious drug addiction” and needs

treatment, not incarceration. Appellant argues that because no evidence shows he was a violent

person or had a lengthy criminal history, he should have received treatment. The State responds

that appellant failed to preserve his complaints for appellate review and the trial court properly

exercised its discretion in sentencing appellant in these cases. The State notes that during the

hearing, appellant admitted having robbed his victim at gunpoint.

Appellant did not complain about the sentences either at the time they were imposed or in

motions for new trial. See TEX. R. APP. P. 33.1(a)(1); Castaneda v. State, 135 S.W.3d at 723.

Thus, he has not preserved this issue for appellate review.

Moreover, punishment assessed within the statutory range for an offense is neither

excessive nor unconstitutionally cruel or unusual. Kirk v. State, 949 S.W.2d 769, 772 (Tex.

App.—Dallas 1997, pet. ref’d); see also Jackson v. State, 680 S.W.2d 809, 814 (Tex. Crim. App.

1984). Aggravated robbery with a deadly weapon is a first-degree felony, with a punishment

range of imprisonment of five to ninety-nine years or life and an optional fine not to exceed

$10,000. See TEX. PEN. CODE ANN. §§ 12.32, 29.03(b). Appellant’s twenty-five-year sentence

is within the statutory range. Likewise, appellant’s five-year sentence is within the punishment

range for the possession of methamphetamine conviction. Possession of methamphetamine in an

amount of one gram or more but less than four grams is a third-degree felony offense with

punishment of imprisonment for two to ten years and an optional fine not to exceed $10,000.

See TEX. PENAL CODE ANN. § 12.24; TEX. HEALTH & SAFETY CODE ANN. § 481.115(c).

‐3‐ We overrule appellant’s two issues. We affirm the trial court’s judgments.

Do Not Publish TEX. R. APP. P. 47 140150F.U05

/Molly Francis/ MOLLY FRANCIS JUSTICE

‐4‐ Court of Appeals Fifth District of Texas at Dallas

JUDGMENT

EMELIO PALACIO, Appellant Appeal from the Criminal District Court No. 5 of Dallas County, Texas (Tr.Ct.No. No. 05-14-00150-CR V. F12-34223-L). Opinion delivered by Justice Francis, THE STATE OF TEXAS, Appellee Justices Lang-Miers and Whitehill participating.

Based on the Court’s opinion of this date, the trial court’s judgment adjudicating guilt is AFFIRMED.

Judgment entered March 27, 2015.

‐5‐ Court of Appeals Fifth District of Texas at Dallas

EMELIO PALACIO, Appellant Appeal from the Criminal District Court No. 5 of Dallas County, Texas (Tr.Ct.No. No. 05-14-00151-CR V. F13-31254-L). Opinion delivered by Justice Francis, THE STATE OF TEXAS, Appellee Justices Lang-Miers and Whitehill participating.

Based on the Court’s opinion of this date, the trial court’s judgment is AFFIRMED.

‐6‐