1 In The 

### Court of Appeals Ninth District of Texas at Beaumont

_________________ NO. 09
- 12
- 002 27
- CR



### _________________ JOE L ALEJANDRO RUIZ , Appellant

V. THE STATE OF TEXAS, Appellee

________________________________________________________________________

On Appeal from the 252nd District Court Jefferson County, Texas Trial Cause No . 11
- 11967

________________________________________________________________________ MEMORANDUM OPINION Joel Alejandro Ruiz 1 appeals from the trial court’s revocation of h is community supervision. In one issue , Ruiz contends that his sentence is disproportionate to the crime committed

. We overrule Ruiz ’s issue and affirm the trial court’s judgment.

1 Joel Alejandro Ruiz is also known as Alex

.2

Ruiz was indicted for the offense of burglary of a habitation

. In accordance with a plea bargain agreement , Ruiz entered a ple a of guilty to the offense

. See Tex. Penal Code Ann. § 30.02 (a)(1), (c)(2) (West 2011). The trial court found the evidence sufficient to find Ruiz guilty, but deferred finding him guilty, and placed him on community supervision for five years. The State subsequently filed a motion to revoke Ruiz’s community supervision. Ruiz pled “true” to t hree violation s of the terms of his community supervision. Thereafter, the trial court found that Ruiz violated the terms of the community supervision order, found Ruiz guilty of burglary of a habitation , revoked Ruiz’s community supervision, and imposed a sentence of 11 year s of confinement. Ruiz argues that he should have been charged with attempted theft and not burglary of a habitation. A d efendant placed on deferred adjudication community supervision may raise issues relating to the original plea proceeding only in appeals taken when deferred adjudication community supervision is first imposed and may not wait to raise such issues in an app eal from revocation of deferred adjudication community supervision. Manuel v. State , 994 S.W.2d 658 , 661

- 62 (Tex. Crim. App. 1999) (citing Tex. Code Crim. Proc. Ann. art. 44.01(j) (West Supp. 2012 ) )

. Because Ruiz’s complaint does not relate to the revoca tion of his community supervision, we are without jurisdiction to consider this issue.3

Ruiz contends that his sentence is disproportionate to the crime committed; however, the record shows that during the hearing, Ruiz never objected to the punishment the trial court pronounced and did not file a motion for new trial. Because Ruiz failed to raise this complaint to the trial court , he has failed to preserve this issue for review. See Tex. R. App. P. 33.1(a)(1); see also Rogers v.
State , 640 S.W.2d 248, 264 ( Tex. Crim. App. 1982) (second op. on reh’g).
Even if Ruiz had properly preserved this issue for review, we find his argument to be without merit. In reviewing a trial judge’s determination as to punishment, we will not overturn a trial judge’s decision on punishment absent a showing of an abuse of discretion. See Jackson v. State , 680 S.W.2d 809, 814 (Tex. Crim. App. 1984). When a defendant is adjudicated guilty, he is subject to the entire range of punishment for the offense. Ditto v. State , 988 S.W.2d 236, 239 n.7 (Tex. Crim. App. 1999). As a general rule , a sentence that is within the range of punishment established by the Legislature will not be disturbed on appeal. Jackson , 680 S.W.2d at 814. Further, the court does not generally consid er a punishment that is within the statutory range for the offense excessive, unconstitutionally cruel, or unusual under either the Texas or the United States Constitution. See Kirk v. State , 949 S.W.2d 769, 772 (Tex. App.

— Dallas 1997,4

pet. ref’d); see als o Jackson v. State , 989 S.W.2d 842, 846 (Tex. App

. — Texarkana 1999, no pet.). Burglary of a habitation is a second degree felony, which carries a punishment range of confinement f rom two to twenty years

. See Tex. Penal Code Ann. § 12.33 (West 2011). Ruiz ’s sentence of 11 years is within the statutory
range the L egislature authorized for the crime of unauthorized use of a motor vehicle

. See id

. The court in Jackson recognized that a prohibition against grossly disproportionate sentences survives apart fro m consideration of whether the sentence assessed is within the statutory range. Jackson , 898 S.W.2d at 846. But

a s the record contains no evidence of “ sentences impos ed for similar offenses o n criminals in Texas or other jurisdicti ons by which to make a comparison [ , ] ” we find that Ruiz failed to prove that his sentence was grossly disproportionate. See i d

. Based on the record before us, we are unable to conclude that Ruiz’s sentence constitutes a cruel and unusual punishment. We overrule Ruiz’s
constitut ional challenges to the length of the sentence assessed by the trial court, and affirm the judgment of the trial court.
AFFIRMED.5 ___________________________ CHARLES KREGER Justice Submitted on March 1 9 , 201 3 Opinion Delivered May 8, 2013 Do not publish Before McKeithen, C.J., Kreger and Horton , JJ.