Luis Romero v. State

• Court: Court of Appeals of Texas
• Decided: March 19, 2019
• Docket: 07-18-00009-CR
• Status: Published

Opinion

In The Court of Appeals Seventh District of Texas at Amarillo

No. 07-18-00009-CR No. 07-18-00063-CR

LUIS ROMERO, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE

On Appeal from the 137th District Court Lubbock County, Texas Trial Court No. 2016-410,249, Honorable John J. “Trey” McClendon III, Presiding

March 19, 2019

MEMORANDUM OPINION Before QUINN, C.J., and PIRTLE and PARKER, JJ.

A jury convicted appellant, Luis Romero, on two counts of aggravated sexual

assault of a child.1 On appeal, appellant submits a single issue, by which he contends

that the life sentence imposed constitutes cruel and unusual punishment. We affirm.

1 See TEX. PENAL CODE ANN. § 22.021(a)(2)(B) (West Supp. 2018). Background

Appellant pleaded not guilty to two counts of aggravated sexual assault of a child.

Following a jury trial, he was found guilty on both counts. The offense is classified as a

first-degree felony. TEX. PENAL CODE ANN. § 22.021(e) (West Supp. 2018). As such, the

range of punishment specified for appellant’s offense included imprisonment for life or for

any term of not more than 99 years or less than five years. Id. § 12.32(a) (West 2011).

The trial court assessed his punishment at life in prison.

Appellant filed a motion for new trial and motion in arrest of judgment, which were

not granted. This appeal followed.

Preservation of Complaint

Appellant argues that the imposition of a life sentence constitutes cruel and

unusual punishment in violation of the Eighth Amendment to the United States

Constitution; Article I, Section 13 of the Texas Constitution; and Article 1.09 of the Texas

Code of Criminal Procedure. He contends that, although the sentence is within the range

authorized by statute, it is grossly disproportionate in light of his poor physical health, the

lack of evidence of prior criminal convictions, and the federal “hold” on him due to his

undocumented immigration status. The State responds that appellant failed to preserve

this claim for appellate review. Alternatively, the State asserts that the sentence has not

been shown to be grossly disproportionate.

For an appellate court to review a complaint, an appellant must preserve the

complaint by timely request, objection, or motion presented to the trial court that states

the specific grounds for the complaint, or the complaint must be apparent from the context

2 of the trial. TEX. R. APP. P. 33.1(a)(1); Harrison v. State, 187 S.W.3d 429, 433 (Tex. Crim.

App. 2005). A claim that a punishment is cruel and unusual must be raised in the trial

court or it will be waived. Rhoades v. State, 934 S.W.2d 113, 120 (Tex. Crim. App. 1996)

(en banc); Wise v. State, 223 S.W.3d 548, 554 (Tex. App.—Amarillo 2007, pet. ref’d).

Here, the record discloses that, after the judge pronounced a life sentence,

appellant voiced no objection. Appellant subsequently filed a timely motion for new trial

and motion in arrest of judgment. In his motion, appellant argued that the verdict was

contrary to the law and the evidence, but he did not contend that the sentence was cruel

and unusual. Although a motion for new trial may serve to preserve a complaint for

appeal, see Williamson v. State, 175 S.W.3d 522, 523-24 (Tex. App.—Texarkana 2005,

no pet.), a general objection that makes no specific reference to a claim of cruel and

unusual punishment does not preserve the issue for appeal. See TEX. R. APP. P.

33.1(a)(1)(A); Redd v. State, No. 06-08-00001-CR, 2008 Tex. App. LEXIS 7969, at *10-

11 (Tex. App.—Texarkana Oct. 20, 2008, no pet.) (mem. op., not designated for

publication). Because appellant did not raise his complaint in the trial court, he has not

preserved it for our review. Accordingly, we decide this issue against him.

Conclusion

Having overruled appellant’s sole issue, we affirm the judgment of the trial court.

Judy C. Parker Justice

Do not publish.