## In the Court of Appeals Second Appellate District of Texas at Fort Worth

___________________________ No. 02

- 22

- 00138

- CR

___________________________

On Appeal from the 371st District Court Tarrant County, Texas Trial Court No. 1685865D

Befo re Kerr, Birdwell, and Wallach, JJ. M emorandum Opinion by Justice Wallach 

### J OSE 

### R AUL 

### S ARAVIA 

### , Appellant

V


### . T HE 

### S TATE OF 

### T EXAS2 ME MORANDUM OPINION Appella nt Jose Raul Sar avia appeals his sentence of six years ’ impri sonment for
the offe ns e of online solicitation of a minor

. I n two points , Saravia asser ts (1) that the trial court erred by considering the pre

- sentence investigati on (PSI) report 1 during sentencing and ( 2) that his sentence is grossly dispro portionate to the offense

. We will
affirm.
I. Background
After communicating with wh om he believed to be a fourteen

- year

- old girl 2 via

a fake online account set up by law enforcement and arrangin g to m eet her for sex , Saravia was indicted for the offense of onl ine solicitation of a minor. Saravia pled gui lty

. Bec ause Saravia had entered an “ open plea ”

— that is , a guilty plea without the
be nefit of a plea agreement

— t he trial cour t ordered the preparation of a PSI report ,

1 A PSI report is a document that jud ges use to help assess a defendant’s punishment for a crime

. See gene rally T e x. Code Crim. Proc. Ann. art. 42 A.252

– . 2 53.

“ The purpose of a PSI report is to provide the trial court with information regarding

‘ the circumstances of the offense with which the defe ndant is charged, the amount of restitution necessary to adequately comp e nsate a victim of the offense, t he criminal and social history of the defendant, and any other informa tion relating to the defendant or the offense requested by the judge. ’ ” Yarbr ough v . State , 57 S.W.3d 611, 61 9 (Tex. App.

— Texarkana 2001, pet. ref ’ d) (qu o ting Tex. Code Crim . Proc. Ann. art
. 41.12, § 9(a) ( repealed by Act of June 17, 2015, 84th Leg., R.S., ch. 770, § 3.01, 2015 T ex. Gen. Laws 2395 ) ) ; see also Tex. Code Crim. Proc. Ann. art. 42A.25 3

.
2 At the sentencing hearing , the St ate ackno wledged that t h e fake profile listed th e accoun tholder as bei ng thirty years old , but the reco rd reflects that the
co mmunications from the fake account made it “ abundantly clear ” that Saravia be lieved he was interacting with a fourteen

- year

- old girl.3 s ee Tex. Code Crim. Proc. Ann. art. 42A.252 (a) , and then held a hearing to assess
Saravi a ’ s puni shment

. At the sentencing hearing, t he S tate called one witness : Taylor Hawkins , a criminal investigator with t he Texas Departmen t of Public Safety. Agen t Hawkins was
the lead investigator on Saravia ’ s c ase and testified brief ly about certain events
involved in the crime. After Haw kins test ified, th e State rested on the PSI report

— though the report w as neve r admitted into evidence

. Saravia then testified o n his own behalf and asked the trial court fo r probat ion

. Dur ing cross

- examination, the State

— wi thout objection

— questi oned Saravia about

s everal m atters contained in the PSI report

. Finally, Saravi a ’ s wi fe testified and expressed her desire that Sara via be placed on probation

. During closing a rgum ents, the State referenced the PSI report and a sked the
trial court to sentence Sa ravia to five years i n prison. Sar avia ’ s counsel re queste d probat ion. The trial court, a cknowledging that it had considered the PSI report, sentenced Saravia to six ye ars in priso n. This appeal follow ed.
II. Discussion On appeal , Saravia raises two points. First, he asserts that the trial court erred by co nsiderin g the PSI report when assessing his sentence because it was n ever admitted into evi dence

. Second , he argues that his sentence is grossly disproportiona te

to t he offe nse for which he was convicted. Saravia ’ s arguments lack merit.4 A. Point One : T he Trial Court ’ s Considerat ion of the PSI Report
In his first poi nt, Saravia asserts t hat the trial co urt er red by considering the PSI report during sen t enc ing because i t was never formally admitted into evidence.
How ever, b e ca use Saravia never objected t o the trial court ’ s consideration of the PSI

r eport, he has failed to preserve t his compl aint for app ellate revie w . See Tex. R. App.
P. 33.1( a). Moreover, even if the complaint had be en pre served, we must overrule it

o n th e m e rits. To preserve a compla int for appellate review, the record must show that the appellant presented a timely request, objection, or motion to the trial court stating t he specific gr ounds for the ruling desired

. Id. ; Lo vill v. State , 319 S.W.3d 687, 69 1 (Tex.
C rim. App. 2009)

. Here, Saravia did not ob ject when the State quest ioned Sar avia
about information in the PSI report during the punishment hearing , nor did he object
to the trial court ’ s consideration of the PSI report. In deed , Sar avia has not dire c t ed us to any place in the record where he o bjected at the trial court level to the
consideration of the PSI report on the g round th at it had not been admitted into
evidence. Thus, h e has f ailed to preserve h is comp laint for review. See, e.g. , Bel l v. Sta t e , 155 S.W.3d 635, 639 ( Tex. App.

— Texarkana 2005, no pet.).
Even if we were to assume that Sa rav ia’s complaint had been preserved, we would overrule his first point on the merits. T he Texa s Code of Crimin al Procedure clearly contemplates that a trial cou r t assessing punishment will consider a PS I report , if one is ordered

. See Tex. Code. Crim. Proc. Ann. art . 37.0 7 , § 3(d) ( “ When the judge5 assesses the punishment, the judge may order a pres entence report
. . . , and after considering the report , and after the hearing of the evidence

. . . , the ju dge sha ll forthwith announce the judge ’ s decision in open court as to the punishment to be assessed.” (emphasis added)) ; see also Jackson v. State , 474 S.W.3d 755, 757

– 58 (Tex. App.

— Houston [14th Dist.] 2014, pet. ref ’ d) ( “ Because a PSI report is intended to acquaint the sentencing trial judge with the defendant ’ s criminal h istory, and the defendant has a full opportunity to object to the accuracy of the PSI report, [ 3 ] a trial court may consider unobjected

- to [fact s ] listed in the PSI report when assessing an appropriate
sentence.” )

. N ot hing in the statute re quires the PSI re port to be admitte d into
evidence before the trial court may consider it

. In fact, as one of our siste r courts has pointed out, bec ause the PSI report often contains confidential informa tion , “ the better practice is to not admit the PSI [report] into evide nce . ” Bell , 155 S.W.3d at 63 9
n.3. In sum, becaus e Saravia did not object t o the trial court ’ s consideration of the
PSI report and because th e report is not required to be admitted int o evidence before
the trial court may consider it , we overrule Saravia ’ s first point

.

3 In sup port of his a rgument tha t t he trial court erred in considering the PSI report, Saravia notes t ha t “ the record is abse nt on many of the PSI report requirements, ” including whether the trial court pr ovided Saravia with a copy of the report at least 48 hours prior to the se ntencing h ea ring. See Tex. Code Crim. Proc. Ann. art. 4 2A.255(a). How ever , Saravia never complained to the trial cou rt that any such requ irements had not been m et
. On a silent record , we must presume the regularity of the p roceedings

. See Murphy v. Stat e , 95 S.W.3d 31 7, 320 (Tex. App.

— Houston [1st Dist .] 2002, pet. ref’d)

.6 B. Point Two: The Proportionality of Sara vi a ’ s Se ntence
In his second point, Sara via argue s that his six

- year prison sentenc e is grossly disp ro por tiona te to the offens e for wh ich h e was convic ted and the re fore constitutes
cruel and unusu al punishment in violation of both the Ei ghth Amendment to the
United States Constit ution and A rticle I, Sec t ion 13 of the Texas Constitution

. H owever, like Saravi a ’ s first point, t h is com plai nt is both unpreserved and meritless

.

“ It is well settled that almost every right, constitutional and statutory, may be
waived by the failure to object. ” Smith v. State , 721 S.W.2d 844, 855 (T ex. Crim. App. 1986)

. As no ted above, t o pr eserve a complaint for appellate review, the record must
show that the appellant presented a timely request, objection, or motion to the trial

cour t stating the specific grounds for the ruling desired. Tex. R. App. P. 33.1(a) ; L ovill , 319 S.W.3d at 691

. Th is r ule holds true for a complaint that a sentence is grossly dispropo rt ionate. Russell v. State , 341 S.W.3d 526, 527

– 28 (Tex. App.

— Fort Worth
2011 , no pet.) ; Kim v. State , 283 S.W.3d 473, 475 (T ex. App.

— Fort Worth 20 09, pet.

r e f ’ d) ; see also Fahmawi v. St ate , No

. 02

- 16

- 00325

- CR , 2017 WL 3081217 , at *1 (Tex. App.

— Fort Worth July 20, 2017, no pet. ) (mem op. , not designated for publicat ion) ( “ We have c onsistently h eld that [a disproportionate

- senten ce] complaint must be preserved f o r appell ate review by first raising it in the trial court via a timely request, objection, or mot ion. ” )

. B ec ause Saravia di d not object when the trial court sentenced
him o r file a motion for new trial raising his disprop ortionality argument , he has
forf e ited thi s issue for appellat e review. S ee Mercado v. State , 718 S.W.2d 291, 296 (Tex.7 Crim. App. 1 986) (“As a general rul e, an appellant may not assert error pertaining to
his sentence or punishment where he failed to obje ct or otherwise raise such error i n the tr ial court.”)

. Nevert heless, a s with his first point, e ven if we were to assume that S arav i a’s second point had been preserved, we would overrule it on the merits. As Saravia acknowledges in his briefing , where, as here, the assessed punishm ent is w ithin the

statu tory limits , it is generally no t subject to a challenge for excessiveness. K im , 283
S.W.3d at 475 (citing Dale v. State , 170 S.W.3d 797, 799 (Tex. App.

— Fort Worth 2005, no pet.) ). Indee d, in assessing Saravi a ’ s sentence, the tria l c ourt had “ essentially

‘ unfet ter ed ’ ” discretion to imp ose any sentence within the pres cribed statu t ory ran ge. Ex parte Chavez , 213 S.W.3d 320, 323 ( Tex. Crim. App. 2006) ( quoti ng Miller

- El v.
State , 782 S.W.2d 892 , 895 (Tex. Crim. Ap p. 1 9 90) )

. Subj ect only to a ver y limited and
“excee dingly rare ” gross

- disproportionality review, a punishment that falls within the legislatively prescribed range and that is based upon the sentence r ’ s informed normative judgme nt is “ un assailable ” on appea l. Id.
To determine whether a n oncapital sentence qualifies for this uncommon and “somewhat amorphous” exception, we eng age in a thre e

- step review begin ning with a
threshold analysis comparing the gravity of the offense to the severity of the sentence.
Graham v. Florida , 560 U.S. 48, 6 0 , 130 S. Ct. 2011, 20 22 (2010) ; State v. Simpson , 488 S.W.3d 318 , 32 3 (Tex. Crim. App. 20 16) ; see also Chavez , 213 S.W.3d at 323

– 24

. Assessing the gravity of the offe nse requires us to consider (1) the harm that the8 defendan t caused or threatened to the v i ctim and to society , (2) the defendant ’ s culpability, and ( 3) the defendant ’ s prior adjud icated and unadjudicated crimes

. See Simpson , 488 S.W.3d at 323. We w eigh the se factors against the defendant ’ s sentence, looking to precedent for guidance as to the c onstitutional limit s of proportional severity. See Hutto v. Davis , 454 U.S. 370, 374

– 75, 102 S. Ct. 703, 706 (1982) (per curiam) ; McGruder v. Puckett , 954 F.2d 313, 3 1 7 (5th Cir. 1992)

. In the rare case in
which this thre shold analysis indicates gross dis p roportionality, we proceed to steps two and three by comparing the defendant ’ s sentence with those received by similar offenders in this jurisdiction and with those imposed for the same crime in other jurisdictions. Sim pson , 488 S.W.3d at 323; see also So l em v. Helm, 463 U. S. 2 7 7 , 296

– 300,
103 S. Ct. 3 0 0 1 , 3012

– 15 (1983 ) (applying steps two a nd three).
Saravia ’ s gross disproportionality argumen t does not pass th e thr eshold test. First , although Saravia did not actually sexually abuse or ha rm anyone becaus e

— unbeknownst to hi m

— the person with whom he was communicating was , in reality, a police officer, his online solicitation of a minor poses a significan t threat to soc iety.
See Ex Parte Fisher , 481 S.W.3d 414, 421 ( Tex. App.

— Amarillo 2015, pet . ref ’ d) ( “ [T] h e societal issue b eing addressed, the solicitation of minors to engage in sexual
activit y, is an area of significant importance

. ” ) ; c f. Stanley v. Illinois , 405 U.S. 645, 649,
92 S. Ct. 1208 , 1212 (1972) (observing that the government has a “right” and “d u ty” to protect min or children)

. Second, because Sar avia pled guilty, his culpab ility for the
underl yi ng crime is cle ar . W hile the third factor

— Saravia ’ s lack of any prior criminal9 recor d

— cuts in his favor, taking all of the factors together, we cannot say that his six

year sent ence , which is on the l ow end of the two

- to

- t wenty

- year statutory ran ge for
second

- degree felonies , 4 give s rise to an inference of dispro portio nality. 5
We overrule Saravia ’ s s econd point

. III. Conclus ion Having o verruled both of Sar a via ’ s points , we a ff irm the trial court ’ s judgme nt.

/s/ Mike Wallach Mike Wallach Justi ce Do Not Publi sh Tex. R. App. P. 47.2(b)
Delivered : April 6 , 2023

4 S ee Tex. Penal Cod e Ann. § § 12.33(a), 33.021(c) , (f)

.
5 Because Saravia ’ s di sproporti onality argument does not pass the threshold test, we need not compare his sentence to others for t h e same offens e in Texas and elsewhere

. See Bolar v. State , 625 S.W.3d 659 , 666 (Tex. App.

— Fort W orth 202 1, no pet.) ; see also Nunna lly v. State , N o . 03

- 19

- 00807

- CR , 2021 WL 4995502 , at * 5 (Tex. App.

— Austin Oct. 2, 202 1, no pet.) (mem. op. , not designated f or publicat io n).