Affirmed and Memorandum Opinion filed August 2, 2012.

In The

Fourteenth Court of Appeals

NO. 14-11-00929-CR

GREGORY HEARN, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 185th District Court

Harris County, Texas

Trial Court Cause No. 1296471

M E M O R A N D U M O P I N I O N

Appellant Gregory Hearn appeals his conviction for assault of a family member 

and impeding breathing. See Tex. Penal Code Ann. § 22.01(b)(2)(B). In a single issue 

he contends his six-year prison sentence is grossly disproportionate to the crime 

committed. We affirm.

Appellant entered a plea of guilty and requested that the trial court assess 

punishment. The complainant, appellant’s former girlfriend, testified that on the night of 

the offense appellant went out for drinks with a friend. When he returned home, she was 
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asleep in the same bed as her grandchild. Appellant and the complainant began arguing 

and physically fighting with each other. Appellant grabbed the complainant’s neck and 

she fell on to the bed. As she lay on the bed, appellant held both hands around her neck 

in an attempt to choke her. As she stood up from the bed, appellant came toward her 

again, and the complainant reached for a knife to defend herself. The complainant’s son 

heard the noise and came into the room to stop the fight.

The complainant testified that she previously had been a victim of assault by 

appellant in 2009, and that there were other instances of violence unreported to

authorities. After hearing testimony from appellant’s family members, the court assessed 

appellant’s sentence at six years in prison. 

Appellant was indicted for the offense of assault of a family member second 

offender and impeding breathing enhanced with a prior conviction for felony assault 

committed against a family member. Appellant was properly admonished, both orally 

and in writing, that the range of punishment was for “a term of life or any term of not 

more than 99 years or less than 5 years in the Institutional Division of the Texas 

Department of Criminal Justice.” See Tex. Code Crim. Proc. Ann. arts. 12.32, 12.42, & 

22.01.

The court sentenced appellant as follows:

Please stand, Mr. Hearn. Gregory Hearn, based on your plea of guilty, the 

Court is going to find you guilty and assess your punishment at 6 years in 

the Institutional Division of the Texas Department of Criminal Justice. Do 

you have anything to say, sir, as to why sentence should not now be 

pronounced against you? 

THE DEFENDANT: No, ma’am.

On appeal, in a single issue, appellant contends the trial court erred by assessing a 

punishment that is grossly disproportionate to the crime committed. Appellant claims his 

sentence is disproportionate to the crime because he received minimum sentences in his 

two prior assault convictions, the complainant in this case fought back and cut appellant 

with a knife and left an embarrassing voicemail greeting on appellant’s phone after he 
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was arrested, and appellant admitted his crime. Appellant, however, failed to preserve 

his complaint of a disproportionate sentence for review.

To preserve purported sentencing error for appellate review, a defendant must 

raise the complaint by objecting to his sentence during the trial’s punishment phase or by 

later filing a motion for new trial. See Tex R. App. P. 33.1; see also Mercado v. State, 

718 S.W.2d 291, 296 (Tex. Crim. App. 1986); Noland v. State, 264 S.W.3d 144, 151–52 

(Tex. App.—Houston [1st Dist.] 2007, pet. ref’d) (holding that when appellant failed to 

object to his sentence at the punishment hearing or to complain about it in his motion for 

new trial, he failed to preserve his Eighth Amendment complaint that the punishment 

assessed was “grossly disproportionate and oppressive”).

In this case, appellant did not object to the pronouncement of his sentence at the 

conclusion of his punishment hearing, nor did he raise the claim in a motion for new trial. 

Accordingly, appellant presents nothing for review on appeal.

Waiver notwithstanding, appellant has not shown that his sentence was grossly 

disproportionate to the offense for which he was convicted. Although a sentence may be 

within the range permitted by statute, it may nonetheless run afoul of the Eighth 

Amendment prohibition against cruel and usual punishment. Solem v. Helm, 463 U.S. 

277, 290 (1983). 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 the 

sentence received to (1) sentences for similar crimes in the same jurisdiction, and (2) 

sentences for the same crime in other jurisdictions. Baldridge v. State, 77 S.W.3d 890, 

893 (Tex. App.—Houston [14th Dist.] 2002, pet. ref’d). The constitutional principal of 

the Eighth Amendment is tempered, however, by the corollary proposition that the 

determination of prison sentences is a legislative prerogative that is primarily within the 

province of the legislatures, not the courts. Rummel v. Estelle, 445 U.S. 263, 274–76 

(1980). 

In first considering whether appellant’s sentence is grossly disproportionate to the 

offense, it should be noted that not only is appellant’s sentence within the range of 
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punishment prescribed by the legislature for habitual felony offenders, but it is also near 

the minimum sentence that can be assessed for this offense. This is not an oppressive 

sentence for conviction of a third assault on a family member. Because appellant’s sixyear sentence is not grossly disproportionate to the offense, we will not consider the 

remaining Solem factors. We overrule appellant’s sole issue.

The judgment of the trial court is affirmed.

PER CURIAM

Panel consists of Justices Boyce, Christopher, and Jamison.

Do Not Publish — TEX. R. APP. P. 47.2(b).