NUMBER 13-11-00349-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
JOHN ANTHONY GOMEZ, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 105th District Court
of Kleberg County, Texas.
MEMORANDUM OPINION
Before Justices Rodriguez, Benavides, and Perkes
Memorandum Opinion by Justice Benavides
Appellant, John Anthony Gomez, appeals the trial court’s sentence of twenty-five
years’ imprisonment after the trial court revoked Gomez’s community supervision and
adjudicated guilt. Gomez was convicted of aggravated assault with a deadly weapon,
which was enhanced to a first degree felony.1 Gomez appeals on the grounds that the
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Gomez is a repeat felony offender, which elevates his second-degree felony to a first-degree
felony. TEX. PEN. CODE ANN. § 12.42(b) (West 2011).
punishment was disproportionate to the seriousness of the alleged offense, in violation of
the Eighth and Fourteenth amendments of the United States Constitution. U.S. CONST.
amend. VIII, XIV. Because we conclude that Gomez did not meet his burden of proof
that the sentence is grossly disproportionate to the offense, we affirm.
I. BACKGROUND
On April 22, 2010, Gomez was indicted for the second-degree felony of
aggravated assault with a deadly weapon. See TEX. PEN. CODE ANN. § 22.02(a) (West
2011). Punishment was enhanced to a first-degree felony due to a previous
conviction.2 Gomez pleaded guilty to aggravated assault with a deadly weapon, and
pleaded true to the enhancement on June 2, 2010. Adjudication of guilt was deferred
and the court ordered Gomez to ten years of community supervision. TEX. CODE CRIM.
PROC. ANN. art. 42.12 (West 2011).
On December 20, 2011, the State filed a motion to revoke community supervision
and to adjudicate guilt alleging, in twenty counts, that Gomez had violated certain
conditions of his probation. The court sanctioned Gomez after a hearing on the motion
to revoke on February 2, 2011. Gomez was ordered to a substance abuse felony
punishment facility, an intensive supervision program, weekly urinalysis, and an anger
management program.
The State filed another motion to revoke community supervision and to adjudicate
guilt on March 10, 2011 and amended that motion on April 12, 2011. Gomez pleaded
not true to all ten counts set forth in the State’s motion. At the hearing on May 13, 2011,
Officers Eric Escobedo, George Flores, Ryan Webb, and Brenda Tijerina testified that on
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Gomez was previously convicted of the felony offense of indecency with a child. See id. § 21.11
(West 2011).
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March 4, 2011, they responded to a call from an alleged victim of family violence, Ms.
Salinas, who stated that Gomez had assaulted her and kept her against her will. At the
hearing, Ms. Salinas stated that she had called the police and said Gomez assaulted her
and kept her against her will because she was mad at him. The officers testified that
Ms. Salinas was visibly shaken and appeared scared of Gomez when they arrived at the
scene. After struggling with the officers, Gomez was subdued, arrested and
transported to the Kleberg County jail.
The trial court found that Gomez violated his community supervision by resisting
arrest; committing the offense of assault (terroristic threat family violence); failing to
participate and complete an intensive supervision program; failing to report any new and
subsequent arrests within forty-eight hours; and failing to attend a battering intervention
and prevention program. The court revoked Gomez’s community supervision and
adjudicated guilt for aggravated assault with a deadly weapon. Thereafter, the trial
court sentenced Gomez to twenty-five years’ imprisonment.
II. ANALYSIS
Gomez challenges the trial court’s sentence of twenty-five years’ imprisonment
because he believes the punishment is disproportionate to the seriousness of the
alleged offense. As a threshold matter, Gomez has failed to preserve this error for our
review. Gomez’s complaint was not made to the trial court by a timely request, he did
not state the specific grounds for objection, and he did not obtain an adverse ruling.
See TEX. R. APP. P. 33.1. Therefore, Gomez did not sufficiently preserve his complaint
of a disproportionate sentence for appeal. See id.
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Nevertheless, Gomez attempts to bypass the issue of waiver by citing to the
Lovejoy decision. Lovejoy v. Lillie, 569 S.W.2d 501, 503 (Tex. Civ. App.—Tyler 1978,
writ ref’d n.r.e). Gomez relies on Lovejoy for the proposition that it is within a court’s
power to review a sentence imposed by judge or jury and to determine whether such
sentence passes constitutional muster, despite no objection made during trial. See id.
The Lovejoy opinion is distinguishable from this case because Lovejoy deals with a
court’s power to adjudicate the constitutionality of a statute, regardless of when or how
the question is raised, if its unconstitutionality is obvious and apparent. See id.
Although Gomez’s issue challenges the constitutionality of a punishment statute as
applied, its unconstitutionality is not obvious or apparent and therefore not subject to our
review. See id.
Nonetheless, assuming without deciding that Gomez had preserved error, we
conclude that the punishment is not disproportionate to the seriousness of the crime to
constitute cruel and unusual punishment. See U.S. CONST. amend. VIII. The U.S.
Supreme Court has stated that “although a sentence may be within the range permitted
by statute, in limited situations it may nonetheless run afoul of the Eighth Amendment
prohibition against cruel and unusual punishment.” Solem v. Helm, 463 U.S. 277, 290
(1983); see Baldridge v. State, 77 S.W.3d 890, 893 (Tex. App.—Houston [14th Dist.]
2002, pet. ref’d). Punishment will be grossly disproportionate to a crime only when an
objective comparison of the gravity of the offense against the severity of the sentence
reveals the sentence to be extreme. Baldridge, 77 S.W.3d 890 at 893. Only if we infer
that the sentence is grossly disproportionate to the offense, will we then consider the
remaining factors of the Solem test and compare Gomez’s sentence to (1) sentences for
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similar crimes in the same jurisdiction; and (2) sentences for the same crime in other
jurisdictions. Id.; see Solem, 463 U.S. 277 at 291.
Gomez suggests that if we applied the facts of his case to those three standards
set forth in Solem it could move through the first threshold standard by finding that
proportionality was an issue. However, it has long been recognized that if the
punishment is within the range established by the legislature, there is no violation of the
state constitutional provisions against cruel and unusual punishment. Baldridge, 77
S.W.3d 890 at 893. An individual adjudicated guilty of a felony of the first degree shall
be punished by imprisonment in the Texas Department of Criminal Justice for life or for
any term of not more than ninety-nine years or less than five years. TEX. PEN. CODE
ANN. § 12.32(a) (West 2011). Here, Gomez was sentenced to twenty-five years’
imprisonment, which was well within the statutory limitation.
Gomez only goes as far as to argue that we could find that proportionality was an
issue. He neither argues nor cites to authority in his favor, and, thus, he does not meet
the threshold of proportionality. Therefore, we need not analyze the two Solem factors.
Gomez’s sole issue is overruled.
III. CONCLUSION
The trial court’s judgment is affirmed.
________________________
GINA M. BENAVIDES,
Justice
Do not publish.
TEX. R. APP. P. 47.2 (b).
Delivered and filed the
26th day of July, 2012.
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