NUMBER 13-20-00393-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
KYLE LEE EAKIN, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 24th District Court
of De Witt County, Texas.
MEMORANDUM OPINION
Before Chief Justice Contreras and Justices Benavides and Silva
Memorandum Opinion by Justice Benavides
Appellant Kyle Lee Eakin was convicted of theft of a firearm, a state jail felony, and
was sentenced to two years in a state jail. See TEX. PENAL CODE ANN. § 31.03(e)(4)(C).
By one issue on appeal, Eakin contends that the trial court abused its discretion by issuing
an excessive sentence and therefore violated the Eighth Amendment of the United States
Constitution. See U.S. CONST. amend. VIII. We affirm.
I. BACKGROUND
On October 4, 2018, Eakin pleaded guilty to theft of a firearm that occurred on April
18, 2018. See TEX. PENAL CODE ANN. § 31.03(e)(4)(C). As a result of this guilty plea, Eakin
was sentenced to five years of deferred adjudication community supervision, assessed a
$1,000 fine, ordered to complete eighty hours of community service, and abide by the
standard rules and conditions of community supervision. Additional charges were
dismissed as part of the plea agreement with the State.
The State filed its motion to revoke community supervision on August 13, 2020,
and alleged that Eakin committed the following violations: (1) committed the criminal
offenses of possession of a controlled substance, criminal mischief, assault causing
bodily injury, and possession of marijuana; and (2) failed to report to his community
supervision officer, pay the costs and fees associated with his community supervision,
and complete community service hours.
On September 1, 2020, Eakin’s hearing for revocation of his community
supervision occurred. Eakin pleaded true to failure to pay various fees, failure to report,
and generally “being behind” on community service. Eakin pleaded not true to all other
alleged violations.
The trial court found that Eakin had violated the terms of his community supervision
by committing the offenses of: (1) possession of a controlled substance, (2) criminal
mischief, (3) assault causing bodily injury, and (4) possession of marijuana. The trial court
further held that Eakin failed to pay his monthly fine payments or fulfil his community
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service hours. As a result of these violations, the trial court adjudicated Eakin’s guilt,
revoked his community supervision, and sentenced him to two years in a state jail facility.
This appeal followed.
II. EXCESSIVE PUNISHMENT
A. Standard of Review and Applicable Law
The trial court’s decision on punishment is reviewed for an abuse of discretion.
Jackson v. State, 680 S.W.2d 809, 814 (Tex. Crim. App. 1984); Quintana v. State, 777
S.W.2d 474, 479–80 (Tex. App.—Corpus Christi–Edinburg 1989, writ ref’d). “Subject only
to a very limited, ‘exceedingly rare,’ and somewhat amorphous Eighth Amendment gross-
disproportionality review, a punishment that falls within the legislatively prescribed range,
and that is based upon the sentencer’s informed normative judgment, is unassailable on
appeal.” Ex parte Chavez, 213 S.W.3d 320, 323–24 (Tex. Crim. App. 2006); Trevino v.
State, 174 S.W.3d 925, 928 (Tex. App.—Corpus Christi–Edinburg 2005, pet. ref’d)
(explaining that a sentence will most likely not be overturned on appeal if it is assessed
within the legislatively determined range).
The Eighth Amendment of the United States Constitution provides that “[e]xcessive
bail shall not be required, nor excessive fines, nor cruel and unusual punishment inflicted.”
U.S. CONST. amend VIII. The Eighth Amendment applies to punishments imposed by
state courts through the Due Process Clause of the Fourteenth Amendment. Id. amend.
XIV. This right and almost every constitutional or statutory right can be waived by a “failure
to object.” Smith v. State, 721 S.W.2d 844, 855 (Tex. Crim. App. 1986); Kim v. State, 283
S.W.3d 473, 475 (Tex. App.—Fort Worth 2009, pet. ref’d); Noland v. State, 264 S.W.3d
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144, 151–52 (Tex. App.—Houston [1st Dist.] 2007, pet. ref’d) (concluding that failure by
the appellant to object at trial meant that an argument that the sentence was grossly
disproportionate to offense was not preserved); see Mercado v. State, 718 S.W.2d 291,
296 (Tex. Crim. App. 1986) (“As a general rule, an appellant may not assert error
pertaining to his sentence or punishment where he failed to object or otherwise raise such
error in the trial court.”); see also TEX. R. APP. P. 33.1(a). To preserve a complaint of
disproportionate sentencing, the criminal defendant must make a timely, specific
objection to the trial court or raise the issue in a motion for new trial. Kim, 283 S.W.3d at
475; Noland, 264 S.W.3d at 151–52; Trevino, 174 S.W.3d at 927–28; Quintana, 777
S.W.2d at 479 (holding defendant waived cruel and unusual punishment argument by
failing to object). Issues of constitutional error may be forfeited if not preserved by
objection. Fuller v. State, 253 S.W.3d 220, 232 (Tex. Crim. App. 2008); see TEX. R. APP.
P. 33.1(a); Noland v. State, 264 S.W.3d at 144, 151 (Tex. App.—Houston [1st Dist.] 2007,
pet. ref’d).
“To determine whether a sentence for a term of years is grossly disproportionate
for a particular defendant’s crime, a court must judge the severity of the sentence in light
of the harm caused or threatened to the victim, the culpability of the offender, and the
offender’s prior adjudicated and unadjudicated offenses.” State v. Simpson, 488 S.W.3d
318, 323 (Tex. Crim. App. 2016). “In the rare case in which this threshold comparison
leads to an inference of gross disproportionality, the court should then compare the
defendant’s sentence with the sentences received by other offenders in the same
jurisdiction and with the sentences imposed for the same crime in other jurisdictions.” Id.
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B. Discussion
Eakin contends that there was a violation of his Eighth Amendment rights.
However, Eakin failed to object to his sentence before the trial court or in a motion for
new trial. Therefore, he failed to preserve this issue for our review and forfeited his right
to raise this complaint on appeal. See TEX. R. APP. P. 33.1; Kim, 283 S.W.3d at 475;
Noland, 264 S.W.3d at 151–52; Trevino, 174 S.W.3d at 927–28; Quintana, 777 S.W.2d
at 479.
Moreover, even if Eakin had preserved error, a two-year sentence for the crime of
theft of a firearm is within the statutorily prescribed punishment range for a state jail felony.
See TEX. PENAL CODE ANN. §§ 12.35(a); 31.03(e)(4)(c). And, the testimony at the
revocation hearing did not establish that the sentence was grossly disproportionate to the
offense when considering the factors elucidated in Simpson. See 488 S.W.3d 318, 323.
The trial court did not err in assessing Eakin’s sentence. We overrule Eakin’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 on the
15th day of July, 2021.
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