NUMBER 13-14-00144-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
JEFFREY WAYNE KALMUS, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 377th District Court
of Victoria County, Texas.
MEMORANDUM OPINION
Before Justices Rodriguez, Garza, and Benavides
Memorandum Opinion by Justice Benavides
This is an appeal from a judgment revoking appellant Jeffrey Wayne Kalmus’s
community supervision and adjudicating guilt. By one issue, Kalmus asserts that the
trial court’s sentence of twenty years’ imprisonment with the Texas Department of
Criminal Justice—Institutional Division (TDCJ-ID) is cruel and unusual punishment under
the United States and Texas constitutions. We affirm.
I. BACKGROUND
In 2009, a Victoria County grand jury indicted Kalmus for aggravated sexual
assault, a first-degree felony. See TEX. PENAL CODE ANN. § 22.021(a)(1)(B)(i), (2)(B)
(West, Westlaw through 2013 3d C.S.). On December 17, 2009, pursuant to Kalmus’s
plea of guilty to the offense charged, the trial court deferred adjudication and placed
Kalmus on community supervision for a period of ten years. The trial court further
ordered that Kalmus comply with fifty-two terms and conditions as part of his community
supervision.
On October 28, 2013, the State filed a motion to adjudicate Kalmus’s guilt on the
grounds that he violated eight terms and conditions of his community supervision,
including that he (1) failed to registered as a sex offender; (2) failed to comply with all
rules, regulations, and treatment programs for sex offenders and was unsatisfactorily
discharged for probation and group violations; (3) accessed the Internet and possessed
a cell phone equipped with Internet service; and (4) failed to not view, receive, download,
transmit, or possess any type of obscene material as defined by section 43.21 of the
penal code. See id. § 43.21 (West, Westlaw through 2013 3d C.S.).
On January 22, 2014, the trial court held a hearing on the State’s motion to
adjudicate guilt, and Kalmus entered a plea of “not true” to all of the State’s allegations.
The trial court received evidence and testimony from several witnesses including Wendy
Wiant and Delores White, two licensed sex offender therapists who treated Kalmus
during his community supervision, and Mindy Pawlik, Kalmus’s community supervision
officer. At the conclusion of the hearing, the trial court found that Kalmus violated the
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four above-referenced terms and conditions of his community supervision, adjudicated
him guilty of the underlying offense of aggravated sexual assault, and sentenced him to
twenty years’ confinement with the TDCJ-ID. This appeal followed.
II. DISPROPORTIONATE SENTENCE
By his sole issue, Kalmus asserts that the trial court’s assessment of twenty
years’ incarceration is cruel and unusual punishment pursuant to the United States and
Texas Constitutions, see U.S. CONST. amend. VIII; TEX. CONST. art. I, § 13; and “well
established case law” by the Texas and federal courts.
As a threshold matter, the State argues that Kalmus did not preserve his
constitutional challenge to the trial court’s sentence. See Wilson v. State, 311 S.W.3d
452, 473–74 (Tex. Crim. App. 2010) (“Preservation of error is a systemic requirement on
appeal.”). We agree.
To preserve an error for appellate review, a party must present a timely objection
to the trial court, state the specific grounds for the objection, and obtain a ruling. See
TEX. R. APP. P. 33.1(a). This rule applies to complaints about the disproportionality of a
sentence imposed by the trial court. See Smith v. State, 821 S.W.2d 844, 855 (Tex.
Crim. App. 1986) (“It is well settled that almost every right, constitutional and statutory,
may be waived by the failure to object.”); Solis v. State, 945 S.W.2d 300, 301 (Tex.
App.—Houston 1997 [1st Dist.], pet. ref’d) (finding that appellant failed to object to the
alleged disproportionality of the sentences thereby waived error for review).
Here, Kalmus neither made an objection to the trial court’s sentence during the
motion to adjudicate guilt hearing nor raised any such objection in a post-trial motion.
As a result, we hold that Kalmus’s issue is not preserved for our review. See TEX. R.
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APP. P. 33.1(a); Wilson, 311 S.W.3d at 473–74. We overrule Kalmus’s sole issue.
III. CONCLUSION
We affirm the trial court’s judgment.
__________________________
GINA M. BENAVIDES,
Justice
Do not publish.
TEX. R. APP. P. 47.2 (b).
Delivered and filed the
11th day of September, 2014.
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