Court of Appeals of Texas, Sixth District, Texarkana
Submitted: September 3, 2019
Appeal from the 427th District Court Travis County, Texas
Trial Court No. D-1-DC-17-206015
Morriss, C.J., Burgess and Stevens, JJ.
K. BURGESS JUSTICE
Navarro, a convicted felon, robbed an adult entertainment
establishment in Travis County, Texas, after holding several
of its employees at gunpoint. Navarro entered an open plea of
guilty to, and was convicted of, aggravated robbery with a
deadly weapon. After reviewing the surveillance footage of
the robbery during a bench trial on punishment, the trial
court sentenced Navarro to twenty years' imprisonment.
appeal, Navarro argues that his sentence was disproportionate
to his crime because he was using methamphetamine regularly,
the crime was not premeditated because he "was not
dressed for a robbery," and his "previous crimes
were property crimes, not crimes of
violence."Because we find that Navarro did not
preserve this complaint, we affirm the trial court's
Navarro Did Not Preserve His Complaint
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." Russell v.
State, 341 S.W.3d 526, 527 (Tex. App.-Fort Worth 2011,
no pet.) (quoting Kim v. State, 283 S.W.3d 473, 475
(Tex. App.-Fort Worth 2009, pet. ref'd) (citations
omitted)); see Williams v. State, 191 S.W.3d 242,
262 (Tex. App.-Austin 2006, no pet.) (a defendant must
preserve an Eighth Amendment claim). Navarro did not object
to his sentence at trial, but he filed a motion for new
trial, arguing, "The punishment is arbitrary and unjust
and disproportionate to the crime committed." Navarro
did not request a hearing on his motion. Here, we must
determine whether the Austin Court of Appeals would find
Navarro's filing of the motion sufficient to preserve
error. "A defendant is required to 'present' a
motion to the trial court within ten days of filing it,
unless the court, in its discretion, extends that time
period." Stokes v. State, 277 S.W.3d 20, 21
(Tex. Crim. App. 2009) (citing Tex.R.App.P. 21.6). The Texas
Court of Criminal Appeals "consistently has held the
filing of a motion for new trial alone is not sufficient to
show 'presentment'" and does not preserve an
issue for appellate review in the absence of a showing that
the trial court has seen the motion. Carranza v.
State, 960 S.W.2d 76, 78 (Tex. Crim. App. 1998); see
Colone v. State, 573 S.W.3d 249, 259 (Tex. Crim. App.
2019) ("[T]he mere filing of a 'certificate of
presentment' will not suffice to establish that a motion
for new trial and request for a hearing has been presented to
the trial court."); Lopez v. State, 96 S.W.3d
406, 414 (Tex. App.- Austin 2002, pet. ref'd)
("[T]he mere filing of a motion for a new trial . . .
will not preserve the error."). "The purpose of the
presentment rule is 'to put the trial court on actual
notice that a defendant desires the trial court to take some
action on the motion for new trial such as a ruling or a
hearing on it.'" Stokes, 277 S.W.3d at 21
(quoting Carranza, 960 S.W.2d at 78). In line with
this precedent, the Austin Court of Appeals requires that in
order to preserve a disproportionate sentencing issue, the
motion for new trial must actually be presented to the trial
court within ten days of filing. Valdez v. State,
No. 03-16-00191-CR, 2017 WL 2729669, at *2 (Tex. App.-Austin
June 23, 2017, no pet.) (mem. op., not designated for
publication) (citing Tex.R.App.P. 26.1; Carranza,
960 S.W.2d at 78); see also Rozell v. State, 176
S.W.3d 228, 230 (Tex. Crim. App. 2005.
review of the appellate record leads us to conclude that
nothing demonstrates that Navarro's motion for new trial
was timely presented to the trial court. The motion was not
hand-delivered to the trial court, there is no notation on
the motion indicating that the trial court had seen it, and
there is no docket entry showing that the motion was brought
to the trial court's attention.
Navarro's point of error unpreserved. "A reviewing
court should not address the merits of an issue that has not
been preserved for appeal." Sandoval v. State,
409 S.W.3d 259, 287 (Tex. App.-Austin 2013, no pet.) (quoting
Wilson v. State, 311 S.W.3d 452, 473-74 (Tex. Crim.
App. 2010) (per curiam) (op. on reh'g) (citing Ford
v. State, 305 S.W.3d 530, 532-33 (Tex. Crim. App.
2009))). Accordingly, we overrule Navarro's unpreserved
point of error.
affirm the trial court's judgment.