Full Opinion (html_with_citations)

                             NUMBER 13-11-00155-CR

                               COURT OF APPEALS

                       THIRTEENTH DISTRICT OF TEXAS

                         CORPUS CHRISTI - EDINBURG


OCTAVIO OLIVARES,                                                            Appellant,

                                            v.

THE STATE OF TEXAS,                                                            Appellee.


                     On appeal from the 24th District Court
                          of Victoria County, Texas.


                             MEMORANDUM OPINION

        Before Chief Justice Valdez and Justices Garza and Vela
             Memorandum Opinion by Chief Justice Valdez

       Appellant, Octavio Olivares, was convicted of aggravated assault against a family

member using a deadly weapon, see TEX. PENAL CODE ANN. §§ 22.01(a)(1) (assault),

22.02(a)(2) (aggravated assault) (West Supp. 2010), a first-degree felony, see id.

22.02(b)(1) (providing that aggravated assault is a first-degree felony if ―the actor uses a

deadly weapon during the commission of the assault and causes serious bodily injury to
a person whose relationship to or association with the defendant is described by

Section 71.0021(b), 71.003, or 71.005, Family Code‖).1 Olivares pleaded ―true‖ to the

State’s enhancement allegations, and the trial court sentenced him to fifty years’

confinement. By one issue, Olivares contends that the punishment imposed was cruel

and unusual. We affirm.

                                         I.      BACKGROUND2

        Roxann Fuentes, Olivares’s former girlfriend, testified that on September 20,

2009, she and Olivares were at a party at a friend’s home.                       Fuentes claimed that

Olivares became upset and asked her to go to the back of the house. Fuentes stated

that Olivares then accused her of ―disrespecting‖ his friend and told her she needed to

apologize in front of everyone at the party. Fuentes testified that although she was

embarrassed, she attempted to apologize to Olivares’s friend. Later, Olivares asked

Fuentes to go to the back of the house once again.                     Fuentes stated the following

occurred:

        So, he’s at the end of the truck and he runs at me and—He runs at me
        and says, ―You think it’s funny? You’re laughing at me?‖ And I tell him,
        ―I’m not laughing.‖ And he said, ―You think it’s funny, bitch?‖ And he
        grabs me and throws me to the ground and he says, ―Bitch you want to
        laugh?‖ And I don’t remember if he kicked me or not. All I remember is
        that I felt something and I got real quiet. I went like that and I went like
        this. And I said, ―Bitch, you stabbed me.‖ And he said, ―Bitch, you want to
        laugh at me?‖

        1
          Olivares was also found guilty of evading arrest or detention, a state jail felony, see TEX. PENAL
CODE ANN. § 38.04(a) (West Supp. 2010), and assault by threat, a class C misdemeanor, see id. §
22.01(a)(2) (West Supp. 2010). The trial court sentenced Olivares to two years’ confinement for the
evading arrest or detention conviction and assessed a $500 fine for the assault by threat conviction.
Olivares does not appeal these convictions and only appeals the aggravated assault conviction.
        2
           Because this is a memorandum opinion and the parties are familiar with the facts, we will not
recite them here except as necessary to advise the parties of the Court’s decision and the basic reasons
for it. See TEX. R. APP. P. 47.4.



                                                     2
According to Fuentes, Olivares ―went at [her]‖ again; however, a friend interrupted the

altercation and Olivares put away the knife. Fuentes stated that her friend took her to

the hospital for treatment. Fuentes testified that she was stabbed in the face.

       After a bench trial, the trial court found Olivares guilty of aggravated assault with

a finding that a deadly weapon was used. At the punishment hearing, Olivares pleaded

―true‖ to the State’s enhancement allegations. The trial court found Olivares was a

repeat felony offender and sentenced him to fifty years’ confinement.          This appeal

followed.

                         II.    CRUEL AND UNUSUAL PUNISHMENT

       By his sole issue, Olivares contends that the fifty-year sentence constitutes cruel

and unusual punishment in violation of the Eighth Amendment. Specifically, Olivares

argues that the punishment is disproportionate and therefore oppressive and unfair.

       The Eighth Amendment of the United States Constitution provides that

―[e]xcessive bail shall not be required, nor excessive fines, nor cruel and unusual

punishment inflicted.‖ U.S. CONST. amend. VIII. The Eighth Amendment applies to

punishments imposed by state courts through the Due Process Clause of the

Fourteenth Amendment. Id. amend. XIV. This right and every constitutional or statutory

right can be waived by a ―failure to object.‖ Smith v. State,
721 S.W.2d 844, 855
 (Tex.

Crim. App. 1986).

       To preserve a complaint of disproportionate sentencing, the criminal defendant

must make a timely, specific objection to the trial court or raise the issue in a motion for

new trial. Kim v. State,
283 S.W.3d 473, 475
 (Tex. App.—Fort Worth 2009, pet. ref’d)




                                             3
(citing Rhoades v. State,
934 S.W.2d 113, 120
 (Tex. Crim. App. 1996)); Noland v. State,
264 S.W.3d 144
, 151–52 (Tex. App.—Houston [1st Dist.] 2007, pet. ref’d); Trevino v.

State,
174 S.W.3d 925
, 927–28 (Tex. App.—Corpus Christi 2005, pet. ref'd); Quintana

v. State,
777 S.W.2d 474, 479
 (Tex. App.—Corpus Christi 1989, pet. ref’d) (holding

defendant waived cruel and unusual punishment argument by failing to object); see TEX.

R. APP. P. 33.1.       Here, Olivares did not object to the sentence at the punishment

hearing or in any post-trial motion. Therefore, Olivares failed to preserve this issue for

our review. See TEX. R. APP. P. 33.1; Kim,
283 S.W.3d at 475
; Noland, 264 S.W.3d at

151–52; Trevino, 174 S.W.3d at 927–28; Quintana,
777 S.W.2d at 479
. Moreover, even

had Olivares preserved error, a punishment that falls within the limits prescribed by a

valid statute, as in this case, is not excessive, cruel, or unusual.3 See Trevino,
174 S.W.3d at 928
. We overrule Olivares’s sole issue.

                                         III.     CONCLUSION

        We affirm the trial court’s judgment.

                                                                 _____________________
                                                                 ROGELIO VALDEZ
                                                                 Chief Justice

Do not Publish.
TEX. R. APP. P. 47.2(b)
Delivered and filed the
21st day of December, 2011.




        3
          Olivares was convicted of a first-degree felony as a repeat felony offender. Thus, under Texas
law, the trial court was authorized to access punishment as ―imprisonment in the Texas Department of
Criminal Justice for life, or for any term of not more than 99 years or less than 15 years.‖ See TEX. PENAL
CODE ANN. § 12.42 (West Supp. 2010).



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