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In The

Court of Appeals

Ninth District of Texas at Beaumont

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NO. 09-12-00227-CR

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JOEL ALEJANDRO RUIZ, Appellant

V. 

THE STATE OF TEXAS, Appellee

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On Appeal from the 252nd District Court

Jefferson County, Texas

Trial Cause No. 11-11967 

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MEMORANDUM OPINION

Joel Alejandro Ruiz1appeals from the trial court’s revocation of his

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.

 

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Joel Alejandro Ruiz is also known as Alex. 
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Ruiz was indicted for the offense of burglary of a habitation. In accordance 

with a plea bargain agreement, Ruiz entered a plea 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 three

violations 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 years of confinement. 

Ruiz argues that he should have been charged with attempted theft and not 

burglary of a habitation. A defendant 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 appeal 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 revocation of his 

community supervision, we are without jurisdiction to consider this issue.
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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 consider 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, 
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pet. ref’d); see also 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 from 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 Legislature 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 from consideration of whether the 

sentence assessed is within the statutory range. Jackson, 898 S.W.2d at 846. But 

as the record contains no evidence of “sentences imposed for similar offenses on

criminals in Texas or other jurisdictions by which to make a comparison[,]” we 

find that Ruiz failed to prove that his sentence was grossly disproportionate. See id.

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 

constitutional challenges to the length of the sentence assessed by the trial court, 

and affirm the judgment of the trial court.

AFFIRMED.
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 ___________________________

 CHARLES KREGER

 Justice

Submitted on March 19, 2013

Opinion Delivered May 8, 2013

Do not publish

Before McKeithen, C.J., Kreger and Horton, JJ.