NUMBER 13-06-427-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
JESSE JAMES GARCIA, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 36th District Court
of San Patricio County, Texas
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Benavides and Vela
Memorandum Opinion by Justice Vela
This is a revocation of community supervision case. By his sole issue, appellant contends that the trial court's sentence constituted cruel and unusual punishment. We affirm.
Background
On September 29, 2003, appellant, Jesse James Garcia, pleaded guilty to aggravated assault in the 36th Judicial District Court of San Patricio County. The trial court assessed punishment at five (5) years confinement in the Institutional Division of the Texas Department of Criminal Justice, but it placed Garcia on community supervision for a period of ten (10) years. On July 10, 2006, Garcia appeared before the trial court and pleaded true to the State's allegations that he had violated the terms and conditions of his probation. The trial court revoked Garcia's probation and imposed a sentence of four and one-half years in prison.
The record reflects that the trial court gave the statutorily required admonishments to Garcia and that his plea was found by the court to have been given knowingly and voluntarily. The court accepted Garcia's plea of true and heard the following evidence: 1) on or about the 24th day of December, 2004, Garcia intentionally and knowingly committed the offense of indecent exposure; 2) on or about the 26th day of December 2004, Garcia committed the offense of assault; 3) on or about the 10th day of August 2004, Garcia failed to pay supervisory fees as ordered by the court; and 4) on or about the 10th day of July 2004, Garcia failed to pay fines and court costs as ordered by the court.
Garcia's attorney called both Garcia and his mother to testify. Garcia admitted that he had violated his probation by committing the alleged offenses, but he asked the court for leniency. Garcia's mother testified that her son helped support her and requested that he be given a second chance. The trial court revoked Garcia's community supervision and sentenced him to four and one-half years in prison.
By his sole issue, Garcia complains that the court's sentence constituted cruel and unusual punishment because he had been convicted and served a sentence of incarceration for the criminal offense that served as a basis for the State's motion to revoke his community supervision. As a result, he claims, he was essentially facing incarceration for the misdemeanor offense for which he had already been punished. (Garcia served a 60 day jail sentence for his assault conviction in Bee County).
The record contains no objections by appellant concerning his sentence. An appellant must present to the trial court a timely, specific objection and obtain an adverse ruling to preserve for appeal his or her complaints concerning cruel and unusual punishment and violation of due process rights. See TEX. R. APP. P. 33.1(a)(1)(A); Schneider v. State, 645 S.W.2d 463, 466 (Tex. Crim. App. 1983) (contention that sentence was void because it inflicted cruel and unusual punishment not preserved for review when complaint not brought to trial court's attention); Alexander v. State, 137 S.W.3d 127, 130-31 (Tex. App.Houston [1st Dist.] 2004, pet. ref'd) (holding that failure to object to violations of federal and state due process rights waives appellate review of those claims); Solis v. State, 945 S.W.2d 300, 301 (Tex. App.Houston [1st Dist.] 1997, pet. ref'd) (holding that failure to object that sentence is grossly disproportionate to offense and violates federal and state constitutional guarantees against cruel and unusual punishment waives appellate review of those claims). We conclude that appellant waived his challenge to his sentence by failing to assert an objection on the grounds that the sentence constituted cruel and unusual punishment.
In any event, the punishment does not violate constitutional provisions. The Eighth Amendment to the United States Constitution provides, "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishment inflicted." U.S. CONST. amend. VIII; Robinson v. California, 370 U.S. 660, 675 (1962). It is well settled that the benchmark to judge excessive incarceration is whether the punishment assessed is within the limits prescribed by statute. See Lombardo v. State, 502 S.W.2d 780, 784 (Tex. Crim. App. 1974); Albro v. State, 502 S.W.2d 715, 716-17 (Tex. Crim. App. 1973); Samuel v. State, 477 S.W.2d 611, 614 (Tex. Crim. App. 1972). Punishment falling within the applicable range prescribed by the legislature is not excessive, cruel, or unusual. Nunez v. State, 110 S.W.3d 681, 682 (Tex. App.Corpus Christi 2003, no pet.); Morales v. State, 897 S.W.2d 424, 427 (Tex. App.Corpus Christi 1995, pet. ref'd) (citing Harris v. State, 656 S.W.2d 481, 486 (Tex. Crim App. 1983)). In Matthews v. State, 918 S.W.2d 666, 669 (Tex. App.Beaumont 1996, pet. ref'd), the court stated, "we do not look to the grounds for adjudication to determine if the sentence is grossly disproportionate; we look to the facts of the crime." Id.
Here, the underlying offense Garcia was convicted of was aggravated assault, a second-degree felony. TEX. PENAL CODE ANN. § 22.02(b) (Vernon Supp. 2006). [The range of punishment for a second-degree felony is two (2) to twenty (20) years and up to a $10,000 fine. Id. The offense for which appellant's probation was revoked and incarcerated was the second-degree felony of aggravated assault, not the misdemeanor offenses that appellant committed while on community supervision. The sentence was well within the range of punishment for a second-degree felony. See Id. Thus, the sentence was not cruel and unusual. See Nunez, 110 S.W.3d at 682. We affirm.
ROSE VELA
Justice
Do not publish.
Tex. R. App. P. 47.2(b).
Memorandum Opinion delivered and
filed this 28th day of June, 2007.