Opinion
NUMBER 13-17-00314-CR
02-15-2018
MARCUS DESHAWN COOKS, Appellant, v. THE STATE OF TEXAS, Appellee.
On appeal from the 24th District Court of Victoria County, Texas.
MEMORANDUM OPINION
Before Justices Rodriguez, Longoria, and Hinojosa
Memorandum Opinion by Justice Hinojosa
Appellant Marcus Deshawn Cooks appeals from a judgment convicting him of aggravated assault with a deadly weapon, a second-degree felony, see TEX. PENAL CODE ANN. § 22.02(a)(2) (West, Westlaw through 2017 1st C.S.), and sentencing him to confinement for eight years. In one issue, Cooks complains that the sentence, rendered in accordance with the jury's verdict as to punishment, violates the Eighth Amendment to the United States Constitution. See U.S. CONST. amend. VIII. We affirm.
I. BACKGROUND
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.
At trial, Narcisa Garcia testified that after 6:00 p.m. on October 7, 2016, several of Garcia's children were in Garcia's front yard when one of her sons summoned her out of the house and to the front yard. He told Garcia that a vehicle had driven past the family's house once, made a U-turn, and stopped in front of the house.
When Garcia exited the house, she heard Cooks yelling from the parked vehicle, "You know who I am. You know who I am. I'm Marcus Cooks. You know who the f[---] I am." Cooks also yelled, "I've seen you work out at the gym. You ain't s[---]", to Albert Perez, a family friend who was also in the front yard. Garcia described Cooks demeanor as "mad" and his behavior as "threatening." According to Garcia, the vehicle was driven by Cooks, he had a boy who appeared to be approximately two years old on his lap, and the passenger in the front seat was Victor Alvarado. Although Garcia had not previously met Cooks and Alvarado, she identified Cooks based on his shouting and Alvarado based on a photograph admitted into evidence.
Garcia repeatedly asked Cooks to leave, but he did not. At the same time, Alvarado remained silent while sitting in the vehicle's front passenger seat. As Garcia was asking Cooks to leave, he moved the boy from his lap to the vehicle's backseat, reached down to the floorboard or center console, retrieved a handgun, and passed it to Alvarado. Garcia recalled that Alvarado manipulated the slide on the top of the gun so as to cock it and pointed the gun at M.G., Garcia's sixteen-year old son, for a couple of seconds. Garcia then began to dial 9-1-1, and soon thereafter the vehicle drove away.
At our discretion, we will identify Garcia's minor son by his initials.
Cooks was indicted for intentionally and knowingly threatening M.G. with imminent bodily injury by retrieving a firearm and handing it to Alvarado, who cocked the firearm and pointed it at M.G. A jury convicted Cooks, and it assessed punishment at confinement for eight years. The trial court signed a judgment of conviction and sentence in accordance with the jury's verdict. Cooks moved for a new trial on the sole ground that "no member of his race or ethnic group" was on the panel that "ultimately made his jury." This appeal followed.
II. DISCUSSION
Cooks contends that he should have received a sentence shorter than eight years under "evolving standards of decency echoed in" the Eighth Amendment to the United States Constitution. See id. We affirm the trial court's judgment because Cooks failed to make a timely objection to the sentence in the trial court and failed to raise the issue in a timely filed post-trial motion. See Briggs v. State, 789 S.W.2d 918, 924 (Tex. Crim. App. 1990).
In order to preserve error for appellate review, the complaining party must present a timely and specific objection to the trial court and obtain a ruling. TEX. R. APP. P. 33.1(a). Even constitutional errors may be waived by failure to object to them at trial. Briggs, 789 S.W.2d at 924. In Curry v. State, the Texas Court of Criminal Appeals overruled Curry's objection to his death sentence brought on appeal because he failed to preserve error when he did not object to the sentence at trial. 910 S.W.2d 490, 497 (Tex. Crim. App. 1995). Curry never objected at trial concerning cruel and unusual punishment. Id. A party's failure to specifically object to an alleged disproportionate or cruel and unusual sentence in the trial court or by presenting a post-trial motion waives any error for the purposes of appellate review. See Rhoades v. State, 934 S.W.2d 113, 120 (Tex. Crim. App. 1996); 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."); see also Newman v. State, No. 13-13-00564, 2014 WL 2937001, at *1 (Tex. App.—Corpus Christi Jun. 26, 2014, no pet.) (mem. op., not designated for publication); Perez v. State, No. 13-12-00521-CR, 2013 WL 1092045, at *1 (Tex. App.—Corpus Christi Mar.14, 2013, no pet.) (mem. op., not designated for publication).
Here, like the appellant in Curry, Cooks did not preserve his constitutional issue for our review. Furthermore, although Cooks filed a motion for new trial, he never assailed the sentence on grounds of a grossly disproportionate sentence. See Briggs, 789 S.W.2d at 924. Therefore, Cooks failed to preserve the issue by his post-trial motion.
We overrule Cook's sole issue.
III. CONCLUSION
We affirm the trial court's judgment.
LETICIA HINOJOSA
Justice Do not publish.
TEX. R. APP. P. 47.2(b). Delivered and filed the 15th day of February, 2018.