NUMBER 13-15-00424-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
EFRAIN HERNANDEZ, 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 Garza and Longoria
Memorandum Opinion by Justice Longoria
Appellant Efrain Hernandez was charged with possession of cocaine. See TEX.
HEALTH & SAFETY CODE ANN. § 481.115 (West, Westlaw through 2015 R.S.). In one issue,
Hernandez argues that the punishment he received was cruel and unusual in violation of
his Eighth and Fourteenth Amendment rights. We affirm.
I. BACKGROUND
On May 22, 2009, Hernandez pled guilty to the offense of possession of cocaine,
a state-jail felony, and was assessed punishment of two years deferred-adjudication
community supervision. See id. On May 19, 2011, Hernandez’s community supervision
was extended an additional twelve months. In 2012, a motion to revoke Hernandez’s
community supervision was filed by the State. In 2014, Hernandez was adjudicated guilty
of the offense and placed on regular community supervision for a period of two years. On
June 22, 2015, the State filed another motion to revoke Hernandez’s community
supervision, and on September 10, 2015, Hernandez entered a plea of “true” to several
allegations, including failure to report and other violations. The trial court found that his
plea was made freely and voluntarily and accepted his plea. The State argued for two
years’ incarceration. Hernandez argued for reinstatement on probation. The trial court
revoked his community supervision and sentenced him to twelve months’ incarceration in
the state-jail division of the Texas Department of Criminal Justice—Institutional Division.
This appeal followed.
II. CRUEL AND UNUSUAL PUNISHMENT
In his only issue on appeal, Hernandez argues that his twelve-month punishment
is cruel and unusual because the sentence is grossly disproportionate to the offense
committed. See U.S. CONST. amend. VIII.
The Eighth Amendment of the United States Constitution requires that a criminal
sentence be proportionate to the crime which was committed. See id.; Noland v. State,
264 S.W.3d 144, 151 (Tex. App.—Houston [1st Dist.] 2007, pet. ref'd). “However, in order
to preserve for appellate review a complaint that a sentence is grossly disproportionate,
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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.”
See Noland, 264 S.W.3d at 151; TEX. R. APP. P. 33.1(a).
Hernandez never raised the issue to the trial court that his punishment was
excessive, disproportionate, or cruel and unusual. He also did not file any post-trial
motion to object to his sentence. In other words, Hernandez complains that his sentence
is cruel and unusual for the first time on appeal. We hold that Hernandez failed to
preserve his Eighth and Fourteenth Amendment complaint. See Noland, 264 S.W.3d at
151; see also TEX. R. APP. P. 33.1(a).
Moreover, even disregarding the issue of preservation, the punishment Hernandez
received was not excessive or disproportionate. A state-jail felony carries a punishment
range of 180 days to twenty-four months. See TEX. PEN. CODE ANN. § 12.35 (West,
Westlaw through 2015 R.S.). Appellant received a punishment of twelve months.
Punishment which falls within the limits prescribed by a valid statute is usually not
excessive, cruel, or unusual. Trevino v. State, 174 S.W.3d 925, 928 (Tex. App.—Corpus
Christi 2005, pet. ref’d). Therefore, we overrule his sole issue.
III. CONCLUSION
We affirm the trial court’s judgment.
Nora L. Longoria
Justice
Do not publish.
TEX. R. APP. P. 47.2(b).
Delivered and filed the
14th day of July, 2016.
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