Opinion filed September 2, 2010

In The

Eleventh Court of Appeals 

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No. 11-10-00070-CR

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ERIK LEONARD PITCHER, Appellant

V.

STATE OF TEXAS, Appellee

On Appeal from the 104th District Court

Taylor County, Texas

Trial Court Cause No. 17191B

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

Erik Leonard Pitcher entered an open plea of guilty to the offense of aggravated sexual 

assault of a child. The trial court convicted him of the offense and sentenced him to confinement 

in the Institutional Division of the Texas Department of Criminal Justice for a term of seventyfive years. Appellant challenges his punishment in a single issue. He contends that his lengthy 

prison sentence constitutes cruel and unusual punishment. We affirm.

Background Facts

Appellant executed a written stipulation of evidence in which he judicially confessed to 

intentionally and knowingly causing his male sexual organ to penetrate the female sexual organ 

of his four-year-old biological daughter. After considering the oral testimony of witnesses and 
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watching appellant’s video confession, the trial court sentenced him to a term of confinement of 

seventy-five years.

Analysis

Appellant contends that the punishment assessed by the trial court is cruel and unusual 

based upon the nature of the crime he committed and his lack of a prior criminal history. He 

supports his contention by asserting that he showed remorse for his crime from the outset and 

that he has been a productive member of society for most of his life. He also points out that he 

did not attempt to evade arrest and that he readily confessed to the crime when confronted with 

it.

The State contends that appellant did not preserve his complaint for appellate review. 

We agree. Appellant did not object to his sentence at the time of sentencing. Appellant also did 

not allege an Eight Amendment violation in his motion for new trial.1 Therefore, his issue on 

appeal has not been preserved for review. Wynn v. State, 219 S.W.3d 54, 61 (Tex. App.—

Houston [1st Dist.] 2006, no pet.); Hergert v. State, 197 S.W.3d 394, 399 (Tex. App.—

Beaumont 2006, no pet.); Castaneda v. State, 135 S.W.3d 719, 723 (Tex. App.—Dallas 2003, no 

pet.).

Even if appellant had preserved his complaint, he could not succeed on his claim. The 

Eighth Amendment prohibits punishment that is “grossly disproportionate” to the offense for 

which a defendant has been convicted. See Harmelin v. Michigan, 501 U.S. 957, 1001 (1991) 

(Kennedy, J., concurring); Solem v. Helm, 463 U.S. 277, 288-90 (1983); McGruder v. Puckett, 

954 F.2d 313, 315-16 (5th Cir. 1992); Bradfield v. State, 42 S.W.3d 350, 353 (Tex. App.—

Eastland 2001, pet. ref’d). In determining whether a sentence is grossly disproportionate to the 

offense committed, the reviewing court must first compare the gravity of the offense with the 

severity of the sentence. McGruder, 954 F.2d at 316; Bradfield, 42 S.W.3d at 353. We judge 

the gravity of the offense in light of the harm caused or threatened to society and the offender’s 

culpability. Moore v. State, 54 S.W.3d 529, 542 (Tex. App.—Fort Worth 2001, pet. ref’d).

The Texas Legislature has indicated a strong desire to harshly punish those who commit 

aggravated sexual assault by making the offense a first degree felony. TEX. PENAL CODE ANN.

§ 22.021(e) (Vernon Supp. 2009). Furthermore, the legislature has established a minimum term 

 

1Appellant only alleged that “the verdict in this cause is contrary to the law and the evidence” in his motion for new 

trial.
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of imprisonment of twenty-five years when the victim of the aggravated sexual assault is 

younger than six years of age. TEX. PENAL CODE ANN. § 22.021(f) (Vernon Supp. 2009). We 

conclude that the gravity of appellant’s offense is not grossly disproportionate to the severity of 

his sentence. Irrespective of the fact that appellant does not have any prior convictions, the 

gravity of the offense he committed against his four-year-old biological daughter was extreme 

and heinous. In this regard, the victim’s counselor testified that she will likely have major issues 

in her life because the perpetrator of her assault was someone who was supposed to be her 

protector. Therefore, under the applicable case law, we do not compare appellant’s sentence to 

sentences received for similar crimes in the same jurisdiction and sentences received for the 

same crime in other jurisdictions. McGruder, 954 F.2d at 316; Bradfield, 42 S.W.3d at 353-54. 

Appellant’s sole issue is overruled.

This Court’s Ruling

The judgment of the trial court is affirmed.

TERRY McCALL

JUSTICE

September 2, 2010

Do not publish. See TEX. R. APP. P. 47.2(b).

Panel consists of: Wright, C.J.,

McCall, J., and Strange, J.