Moises Garza Chapa v. The State of Texas--Appeal from 175th Judicial District Court of Bexar County

MEMORANDUM OPINION
No. 04-02-00716-CR
Moises Garza CHAPA,
Appellant
v.
The STATE of Texas,
Appellee
From the 175th Judicial District Court of Bexar County, Texas
Trial Court No. 1997CR5808
Honorable Mary Roman, Judge Presiding

Opinion by: Paul W. Green, Justice

Sitting: Paul W. Green, Justice

Karen Angelini, Justice

Sandee Bryan Marion, Justice

Delivered and Filed: July 30, 2003

AFFIRMED

Appellant Moises G. Chapa was indicted for the offense of Felony Driving While Intoxicated and entered a plea of guilty before the trial court. The court found Chapa guilty of the offense charged and sentenced him to seven years' imprisonment, probated for seven years. Following an alleged violation of Chapa's probation, the State filed a motion to revoke. Subsequent a hearing on the State's motion, Chapa's probation was revoked and he was sentenced to five years' imprisonment and a $1000 fine. Chapa now appeals this revocation in a single issue.

Because the issues in this appeal involve the application of well-settled principles of law, we affirm the revocation in this memorandum opinion under Tex. R. App. P. 47.1 for the following reasons:

1. Chapa asserts the five year sentence imposed by the trial court constitutes cruel and unusual punishment in violation of his rights under both the United States and Texas Constitutions because he had already served approximately three and a half years in federal custody at the time he was sentenced. U.S. Const. am. VIII; Tex. Const. art. I, 13. In evaluating whether a punishment is excessive, Texas courts have held that punishments which fall within the prescribed statutory limitations are not cruel and unusual. See e.g., Harris v. State, 656 S.W.2d 481, 486 (Tex. Crim. App. 1983); Thomas v. State, 916 S.W.2d 578, 584 (Tex. App.--San Antonio 1996, no pet.). The punishment range for felony driving while intoxicated is confinement for not less than two years or more than ten years and a fine of up to $10,000. See Tex. P. Code Ann. 12.34 (Vernon 2003); Tex. P. Code Ann. 49.09 (Vernon 2003). Because Chapa was sentenced well within the statutory limits, the trial court did not abuse its discretion in setting the term of his imprisonment at five years. In addition, Chapa failed to present any evidence to the trial court that his federal detention was related to or in conjunction with the offense at hand.

2. Chapa also attempts to make the argument that the State and the revoking court failed to exercise due diligence in hearing and determining the validity of the allegations made in the revocation motion. By failing to object to this alleged lack of due diligence in the trial court, however, Chapa has waived this issue for appeal. Tex. R. App. P. 33.1(a). As such, we overrule Chapa's sole issue and affirm the judgment of the trial court.

Paul W. Green, Justice

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