Mark Anthony Delesma v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: June 30, 2023
• Docket: 05-22-00792-CR
• Status: Published

Opinion

AFFIRMED and Opinion Filed June 30, 2023

In the Court of Appeals Fifth District of Texas at Dallas No. 05-22-00792-CR

MARK ANTHONY DELESMA, Appellant V. THE STATE OF TEXAS, Appellee

On Appeal from the 194th Judicial District Court Dallas County, Texas Trial Court Cause No. F15-54906-M

MEMORANDUM OPINION Before Justices Molberg, Carlyle, and Smith Opinion by Justice Carlyle Mr. Delesma complains his 10-year-sentence for possession of more than one

but less than four grams of methamphetamine (1) violates the Eighth Amendment’s

prohibition against cruel and unusual punishment; and (2) violates claimed rights

under the “objectives the Texas Penal Code as a whole is supposed to serve and

achieve”; and that the trial court erred by (3) failing to afford him his common law

right to allocution.

Assuming he preserved his first issue, the sentence is within the punishment

range for the charged offense. See TEX. HEALTH & SAFETY CODE § 481.115(c); TEX.

PENAL CODE § 12.34. We conclude it is not grossly disproportionate and passes constitutional muster. See State v. Simpson, 488 S.W.3d 318, 322 (Tex. Crim. App.

2016).

Mr. Delesma did not preserve his challenge that the sentence fails to achieve

what he suggests are the objectives of the Texas Penal Code, even in his motion for

new trial. See TEX. R. APP. P. 33.1(a); Zamarron v. State, No. 05-19-00632-CR, 2020

WL 6280869, at *4 (Tex. App.—Dallas Oct. 27, 2020, pet. ref’d) (mem. op., not

designated for publication).

Finally, Mr. Delesma did not preserve a complaint regarding any common law

right to allocution by timely objection at sentencing and had the opportunity to object

at that time. See TEX. R. APP. P. 33.1(a); Loring v. State, No. 05-18-00421-CR, 2019

WL 3282962, at *5 (Tex. App.—Dallas July 22, 2019, no pet.) (mem. op., not

We overrule Mr. Delesma’s three issues and affirm the trial court’s judgment.

/Cory L. Carlyle/ 220729f.u05 CORY L. CARLYLE Do Not Publish JUSTICE TEX. R. APP. P. 47.2(b)

–2– Court of Appeals Fifth District of Texas at Dallas JUDGMENT

MARK ANTHONY DELESMA, On Appeal from the 194th Judicial Appellant District Court, Dallas County, Texas Trial Court Cause No. F15-54906-M. No. 05-22-00792-CR V. Opinion delivered by Justice Carlyle. Justices Molberg and Smith THE STATE OF TEXAS, Appellee participating.

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

Judgment entered this 30th day of June, 2023.

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