Before Morriss, C.J., Burgess and Stevens, JJ. Opinion by Justice Burgess O P I N I O N Augustine Navarro, a convicted felon, robbed an adult entertainment establishment in Travis County, Texas, after holding several of its employees at gunpoint.[1] 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. On 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.”[2]Because we find that Navarro did not preserve this complaint, we affirm the trial court’s judgment. I. Navarro Did Not Preserve His Complaint “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.” 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.[3] A 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. We find 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.[4] II. Conclusion We affirm the trial court’s judgment. Ralph K. Burgess Justice Date Submitted: September 3, 2019 Date Decided: September 11, 2019 Publish
