Sergio Valentin Martinez v. State

• Court: Court of Appeals of Texas
• Decided: November 30, 2011
• Docket: 10-10-00147-CR
• Status: Published

Opinion

IN THE TENTH COURT OF APPEALS

No. 10-10-00147-CR

SERGIO VALENTIN MARTINEZ, Appellant v.

THE STATE OF TEXAS, Appellee

From the 413th District Court Johnson County, Texas Trial Court No. F43430

MEMORANDUM OPINION

Appellant Sergio Valentin Martinez pleaded guilty to two counts of fraudulent

use or possession of identifying information (another person’s social security number).

The matter proceeded to a bench trial on punishment. The trial court assessed

Martinez’s punishment at twenty-four months’ imprisonment in state jail and a $5,000

fine. This appeal followed.

In his first issue, Martinez contends that the trial court erred in assessing his

punishment because his sentence constitutes cruel and unusual punishment even though it is within the statutory range for the offense. He argues that the sentence is a

violation of the Eighth Amendment of the United States Constitution. However, no

objection on this ground was made to the trial court.

To preserve an issue for appellate review, a party must present a timely objection

to the trial court, state the specific grounds for the objection, and obtain a ruling. TEX. R.

APP. P. 33.1(a). Claims of cruel and unusual punishment can be forfeited if not brought

before the trial court. See Curry v. State, 910 S.W.2d 490, 497 (Tex. Crim. App. 1995)

(stating that appellant failed to preserve his complaint that his punishment violated the

Eighth Amendment prohibition against cruel and unusual punishment because he

urged no objection at trial); Mercado v. State, 718 S.W.2d 291, 296 (Tex. Crim. App. 1986)

(“As a general rule, an appellant may not assert error pertaining to his sentence or

punishment where he failed to object or otherwise raise such error in the trial court.”);

Noland v. State, 264 S.W.3d 144, 151-52 (Tex. App.—Houston [1st Dist.] 2007, pet. ref’d)

(holding that appellant failed to preserve his Eighth Amendment complaint because he

never made the argument to the trial court); see also Winkfield v. State, No. 10-10-00394-

CR, 2011 WL 4490233, at *1 (Tex. App.—Waco Sept. 28, 2011, no pet. h.) (mem. op., not

designated for publication).

Martinez did not raise any objections to his punishment in the trial court either at

the time of sentencing or in his motion for new trial. His motion for new trial merely

states, “The verdict was contrary to the law and the evidence.” Thus, Martinez has

failed to preserve his first issue, and we overrule it. See TEX. R. APP. P. 33.1(a); Curry,

910 S.W.2d at 497.

Martinez v. State Page 2 In his second issue, Martinez contends that the trial court violated his due

process rights in assessing his punishment by failing to consider the full range of

punishment and assessing a predetermined sentence. But the requirement of an

objection to the trial court applies even to due-process violations. See Hull v. State, 67

S.W.3d 215, 216-18 (Tex. Crim. App. 2002); see also TEX. R. APP. P. 33.1(a); Winkfield, 2011

WL 4490233, at *1. Martinez did not object during the proceeding or at the time his

sentence was imposed, nor did he raise his due-process concerns in his motion for new

trial. Thus, Martinez has failed to preserve this issue as well. See TEX. R. APP. P. 33.1(a).

We overrule Martinez’s second issue.

Having overruled both of Martinez’s issues, we affirm the trial court’s judgment.

REX D. DAVIS Justice

Before Chief Justice Gray, Justice Davis, and Justice Scoggins Affirmed Opinion delivered and filed November 30, 2011 Do not publish [CR25]

Martinez v. State Page 3