Rudy Garza Molina v. the State of Texas

Opinion

IN THE TENTH COURT OF APPEALS

No. 10-20-00078-CR

RUDY GARZA MOLINA, Appellant v.

THE STATE OF TEXAS, Appellee

From the 443rd District Court Ellis County, Texas Trial Court No. 44633CR

MEMORANDUM OPINION

Appellant, Rudy Garza Molina, was charged by indictment with assault family

violence with a prior family violence conviction, enhanced by two prior felony

convictions. See TEX. PENAL CODE ANN. § 22.01(b)(2)(A). A jury found Molina guilty of

the charged offense. Molina elected for the trial court to assess punishment. At the

punishment hearing, Molina pleaded “true” to both enhancement allegations. The trial

court found the enhancement allegations to be “true” and sentenced Molina to forty years’ incarceration in the Institutional Division of the Texas Department of Criminal

Justice with no fine.

In two issues on appeal, Molina contends that his forty-year sentence is grossly

disproportionate to the crime and inappropriate to the offender, thus violating his

constitutional rights pursuant to the Eighth Amendment to the United States

Constitution and article I, section 13 of the Texas Constitution. See U.S. CONST. amend.

VIII; see also TEX. CONST. art. I, § 13. We affirm.

Issues One and Two

A disproportionate-sentence claim must be preserved for appellate review. See

TEX. R. APP. P. 33.1(a)(1); Rhoades v. State, 934 S.W.2d 113, 120 (Tex. Crim. App. 1996)

(noting that constitutional rights, including the right to be free from cruel and unusual

punishment, may be waived); Mercado v. State, 718 S.W.2d 291, 296 (Tex. Crim. App. 1986)

(en banc); see also Noland v. State, 264 S.W.3d 144, 151 (Tex. App.—Houston [1st Dist.]

2007, pet. ref’d) (“[I]n order to preserve for appellate review a complaint that a sentence

is grossly disproportionate, constituting 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.”).

At the punishment hearing, Molina did not assert his disproportionate-sentence

claim. Indeed, when asked if there was “any legal reason why sentence should not be

imposed today for Mr. Molina,” defense counsel responded, “No, Your Honor.” Further,

Molina v. State Page 2 Molina did not raise a disproportionate-sentence claim in his motion for new trial or

otherwise present a post-trial objection to the imposed sentence. Therefore, Molina’s

complaints in these two issues are not preserved and are overruled.

Conclusion

We affirm the judgment of the trial court.

MATT JOHNSON Justice

Before Chief Justice Gray, Justice Johnson, and Justice Smith Affirmed Opinion delivered and filed September 29, 2021 Do not publish [CRPM]

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