NO. 12-09-00235-CR
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
DANIEL GUZMAN,
APPELLANT ' APPEAL FROM THE 7TH
V. ' JUDICIAL DISTRICT COURT OF
THE STATE OF TEXAS, ' SMITH COUNTY, TEXAS
APPELLEE
MEMORANDUM OPINION
Daniel Guzman appeals his sentence following his conviction for aggravated
robbery after the trial court proceeded to revoke his deferred adjudication community
supervision and adjudicate his guilt. In a single issue, Appellant argues that the evidence
is factually insufficient to support his punishment and that his sentence constitutes cruel
and unusual punishment. We affirm.
BACKGROUND
On January 20, 2009, Appellant was sentenced to five years of deferred
adjudication community supervision (“community supervision”) for aggravated robbery,
a first degree felony. Among other things, the terms of Appellant’s community
supervision required him to “commit no offense against the laws of this state,” to refrain
from drinking or possessing alcoholic beverages at any time, and to conduct six hours of
community service each month until he reached 320 hours, measured from February,
2009.
On April 18, 2009, Appellant was arrested for public intoxication after consuming
alcohol. Following his arrest, Appellant’s community supervision officer recommended
that the court amend the terms of his community supervision by requiring him to submit
to an alcohol treatment program and to complete the Lifeskills Program. The trial court
signed an order adding the requested conditions. On June 2, 2009, Appellant was
arrested a second time for operating a motor vehicle without a license. Appellant also
failed to complete his community service requirement for the months of February, April,
and May 2009.
Consequently, the State filed its “Application to Proceed to Final Adjudication,”
asking the court to revoke Appellant’s community supervision, adjudicate his guilt on the
underlying aggravated robbery offense, and assess punishment. Appellant pleaded “true”
to all three alleged violations of his community supervision. After a hearing, the trial
court revoked Appellant’s community supervision, found him guilty of the underlying
aggravated robbery offense, and assessed punishment at fifteen years of imprisonment.
Appellant timely appealed.
PUNISHMENT
Appellant, in a single multifarious issue, contends that the evidence was factually
insufficient to support the assessed sentence, and that the length of his sentence was
“harsh and excessive” under the circumstances.
Factual Sufficiency – Punishment Evidence
Appellant contends that “the standard of review for factual sufficiency is similar
to the sufficiency, or lack thereof, of the evidence, considered by the Trial Court to hand
down such a harsh sentence on Appellant.” He argues that we “must consider whether
the great weight and preponderance of the evidence is sufficient to justify a remand for a
new trial.” We construe Appellant’s arguments as a challenge to the factual sufficiency
of the evidence on punishment.
A factual sufficiency review of the evidence supporting the assessment of
punishment is inappropriate. See Robertson v. State, 245 S.W.3d 545, 548-49 (Tex.
App.—Tyler 2007, pet. ref’d); see also Bradfield v. State, 42 S.W.3d 350, 351 (Tex.
App.—Eastland 2001, pet. ref’d). To the extent that Appellant challenges the factual
sufficiency of the punishment evidence, his sole issue is overruled.
Cruel and Unusual Punishment
Appellant also argues that the public intoxication and driving without a license
arrests were not severe enough to warrant such a “harsh and excessive sentence” for the
underlying aggravated robbery offense. We construe this as a constitutional claim that
the sentence was disproportionate to the underlying offense for which he was convicted.
Appellant did not object to his sentence when it was assessed. Because Appellant
did not raise this objection in the trial court, he has not preserved the issue for appellate
review. See TEX. R. APP. P. 33.1(a); See Schneider v. State, 645 S.W.2d 463, 466 (Tex.
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Crim. App. 1983); Jacobs v. State, 80 S.W.3d 631, 632-33 (Tex. App.—Tyler 2002, no
pet.).
But even if Appellant had preserved this complaint for review, he still would not
prevail. Where deferred adjudication community supervision is revoked, the trial court
may generally impose any punishment authorized by statute within the statutory range.
Von Schounmacher v. State, 5 S.W.3d 221, 223 (Tex. Crim. App. 1999) (per curiam);
Jackson, 680 S.W.2d at 814. Appellant was convicted of aggravated robbery, a first
degree felony, with a possible punishment of life or any term of not more than ninety-
nine years or less than five years. See TEX. PENAL CODE ANN. §§ 12.32 (Vernon Supp.
2009); 29.03 (Vernon 2003). He was sentenced to fifteen years of imprisonment, which
is within the statutory range.
Appellant concedes that his punishment is within the statutory range, but he
implicitly contends it is grossly disproportionate to the facts of this case in violation of
the Eighth Amendment. See U.S. CONST. amend. VIII; Solem v. Helm, 463 U.S. 277,
103 S. Ct. 3001, 3006, 77 L. Ed. 2d 637 (1983).1 The proportionality of a sentence is
evaluated by considering 1) the gravity of the offense and the harshness of the penalty, 2)
the sentences imposed on other criminals in the same jurisdiction, and 3) the sentences
imposed for commission of the same crime in other jurisdictions. Solem, 463 U.S. at
292, 103 S. Ct. at 3011. Unless Appellant establishes that his sentence is grossly
disproportionate to his crime, we need not address the second and third criteria set out in
Solem. See McGruder v. Puckett, 954 F.2d 313, 316 (5th Cir. 1992); see also Robertson
v. State, 245 S.W.3d 545, 549 (Tex. App.—Tyler 2007, pet. ref’d).
In determining whether Appellant’s sentence is grossly disproportionate, we are
guided by the holding in Rummel v. Estelle, 445 U.S. 263, 100 S. Ct. 1133, 63 L. Ed. 2d
382 (1980). After considering the facts of the instant case in light of Rummel, we
conclude that Appellant’s sentence was not unconstitutionally disproportionate. See id.,
445 U.S. at 266, 100 S. Ct. at 1134-35 (holding that life sentence is not cruel and unusual
punishment for obtaining $120.75 by false pretenses where appellant had a prior felony
conviction for fraudulent use of credit card to obtain $80 worth of goods or services and
another for passing a forged check in amount of $28.36). Absent a threshold showing of
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Texas courts have consistently concluded that there is no significant difference between the
United States and Texas constitutional provisions prohibiting cruel and unusual punishment. See, e.g.,
Cantu v. State, 939 S.W.2d 627, 645 (Tex. Crim. App. 1997) (comparing Texas Constitution article I,
section 13 with United States Constitution amendment VIII).
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disproportionality, we need not address the second and third Solem criteria. Therefore,
we cannot conclude that Appellant’s sentence constituted cruel and unusual punishment.
The remainder of Appellant’s sole issue is overruled.
DISPOSITION
We affirm the judgment of the trial court.
JAMES T. WORTHEN
Chief Justice
Opinion delivered May 5, 2010.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.
(DO NOT PUBLISH)
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