### NUMBER 13 - 1 0 - 00 657 - C R 

## COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI

– EDINBURG

DOMINGO LUERA , Appellant,

v. THE STATE OF TEXAS , Appellee.

On appeal from the 148th District Court of Nueces County, Texas

.


## MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Rodriguez and Garza

Memorandum Opinion by Justice Garza By a single issue, appellant Domingo Luera contends that his sentence ―violates his U[.]S[.] constitutional due process right to receive a sentence which is not more than necessary to accomplish all of the objectives in the Texas Penal Code.‖ 1 We affirm.

1 We mention at the outset that appellant’s argument mirrors those made in Clifford v. State , No. 13

- 10

- 00256

- CR, 2010 Tex. App. LEXIS 9750, at *9

– 15 (Tex. App.

— Corpus Christi Dec. 9, 2010, pet.2 I. B ACKGROUND On August 24, 2007, appellant pleaded guilty to one count of sexual assault, a
second

- degree felony. See T EX

. P ENAL C ODE A NN

. § 22.011(a)(1)(B), (f) (West Supp. 2010). The trial court placed appellant on deferred adjudication community supervision for fi ve years and imposed a $250.00 fine. S ee T EX

. C ODE C RIM

. P ROC

. A NN

. art. 42.12 , § 5(a) (West Supp. 2010). On April 16, 2010, the State filed a motion to revoke appellant’s deferred adjudication community supervision, alleging various violations of the terms of appellant’s community supervision. Appellant pleaded ―true‖ to many of the State’s allegations. After hearing evidence, the trial court found many of the State’s allegations ―true,‖ revoked appellant’s community supervision, adjudicated him guil ty, and sentenced him to fifteen years’ imprisonment. See T EX

. P ENAL C ODE A NN

. § 12.33 ( West Supp. 2010).
II. C ONSTITUTIONALITY OF S ENTENCE By a single issue, appellant cont ends that the sentence imposed ― violates his U[.]S[.] constitutional right to receive a sentence which is not more than necessary to accomplish all of the obje ctives in the Texas Penal Code.‖ He argues that ― a sentence

ref’d) (mem. op., not designated for publication), and Garcia v. State , No. 13

- 10

- 00281

- CR, 2010 Tex. App. LEXIS 8432, at *8

– 12 (Tex. App.

— Corpus Christi O ct. 21, 2010, pet. ref’d) (mem. op., not designated for publication). Likewise, our analysis follows this Court’s precedent set out in those cases. See Clifford

, 2010 Tex. App. LEXIS 9750, at *9

– 15; Garcia , 2010 Tex. App. LEXIS 8432, at *8

– 12. As in Gar cia and Clifford

, appellant states throughout his brief that his arguments are ―foreclosed under current law but [are] raise[d] . . . in an adversarial fashion for purposes of preserving error for possible further review.‖ See Garcia , 2010 Tex. App. LEXIS 8432, at *2 n.1; Clifford , 2010 Tex. App. LEXIS 9750, at *1

– 2 n.1. We note that such ―further review‖ seems unlikely, given that the court of criminal appeals refused to grant petitions for discretionary review in Garcia and Clifford. See T EX

. R. A PP

. P

. 69.1 ( ―If four judges do not vote to grant a petition for discretionary review, the Court will enter a docket notation that the petition is refused

.‖).3

at the bottom of the s tatutory range , which would have been 2 years, would have been

muc h more appropriate in this case, and would have accomplished all of the sentencing objectives of the Texas Penal C ode. ‖ See id. § 1.02 ( West 2003). He also generally asserts ― that his substantive and procedural due process rights were violated when the court imposed a sentence at the higher end of the statutory range, in light of the facts

. . . established on the record.‖ See U.S. C ONST

. amends. VIII, XIV.
A. Applicable Law The Texas Penal Code sets out the following objectives of sentencing: The general purposes of this code are to establish a system of prohibitions, penalties, and correctional measures to deal with conduct that unjustifiably and inexcusably causes or threatens harm to those individual or public interests for which state protection is appropriate. To this end, the provisions of this code are intended, and shall be construed, to achieve the following objectives: (1) to insure the public safety through: (A) the deterrent influence of the penalties hereinafter provided; (B) the rehabilitation of those convicted of violations of this code; and (C) such punishment as may be necessar y to prevent likely recurrence of criminal behavior; (2) by definition and grading of offenses to give fair warning of what is prohibited and of the consequences of violation; (3) to prescribe penalties that are proportionate to the seriousness of offenses and that permit recognition of differences in rehabilitation possibilities among individual offenders; (4) to safeguard conduct that is without guilt from condemnation as criminal;4

(5) to guide and limit the exercise of official discretion in law enforcement to prevent arbitrary or oppressive treatment of persons suspected, accused, or convicted of offenses; an d (6) to define the scope of state interest in law enforcement against specific offenses and to systematize the exercise of state criminal jurisdiction. See T EX

. P ENAL C ODE A NN . § 1.02.

― Save as limited by constitutional provisions safeguarding individu al rights, a State may choose means to protect itself and its people against criminal violation of its laws. The comparative gravity of criminal offenses and whether their consequences are more or less injurious are matters for its determination.‖ Pennsyl vania v. Ashe , 302 U.S. 51, 55

- 56 (1937); see Crawley v. State , 513 S.W.2d 62, 66 (Tex. Crim. App. 1974) (holding that ― [i]t is within the power of the State to define as criminal conduct whatever acts it sees fit, so long as such acts bear some reasonable relation to the needs of society and the safety an d general welfare of the public‖ ). The Eighth Amendment provides that ― [e]xcessive bail shall not be required, nor excessive fines imposed, nor
cruel a nd unusual punishment inflicted‖ and is applicable to punishments imposed by
state courts t hrough the Fourteenth Amendment’ s Due Process Clause. U.S. C ONST

. amends. VIII, XIV; Robinson v. California , 370 U.S. 660, 667 (1962). The Eighth Amendment does not require strict proportionality between the crime an d the sentence; rather, it forbids extreme sentences that are ―grossly disproportionate‖ to the crime. Ewing v. California , 538 U.S. 11, 21 (2003). In general, Texas courts have held that as long as the punishment assessed falls within the statutory rang e, the punishment is not excessive. See Jordan v. State , 495 S.W.2d 949, 952 (Tex. Crim. App. 1973); Trevino v. S tate, 174 S.W.3d 925, 928 (Tex. App.

— Corpus Christi 2005, pet. ref'd).5

B. Analysis Appellant’s sentence falls within the punishment r ange for second

- degree felonies, s ee T EX

. P ENAL C ODE A NN . § 12.33(a) (providing that the applicable range of punishment for a second

- degree is imprisonment for ― any term of not more than 20 years or less than 2 years ‖ )

. Although this normally does not end our inquiry, see Winchester v. State , 246 S.W.3d 386, 388 (Tex. App.

—Amarillo 2008, pet. ref’ d) (recognizing that a prohibition against a grossly disproportionate sentence survives under the federal constitution apart from any consideration whether the pu nishment
assessed is within the statute ’ s punishment range), appellant made no objection to his sentence either at the time of sentencing or in any post

- trial motion. To preserve error for appellate review, a party must present a timely objection to the t rial court, state the specific grounds for the objection, and obtain a ruling. T EX

. R. A PP

. P. 33.1(a). By failing to specifically object in the trial court or in a post

- trial motion, appellant has waived any error in sentencing for our review. See Nola nd v. State , 264 S.W.3d 144, 151 (Tex. App.

— Houston [1st Dist.] 2007, pet. ref'd) ( ― [I]n order to preserve for appellate review a complaint that a sentence is grossly disproportionate, constituting cruel and unusual punishment, a defendant must present to the trial court a timely request, objection, or motion stating the specific grounds for the ruling desired. ‖ ); Trevino , 174 S.W.3d at 927

– 28 (― Because the sentence imposed is within the punishment range and is not illegal, we conclude that the rights [appe llant] asserts for the first time on appeal are not so fundamental as to have relieved him of the necessity of a timely, specific trial objection. ‖); see also Lopez v. State , No. 13

- 09

- 00101

- CR, 2010 Tex. App. LEXIS 5019,
at *2

– 3 (Tex. App.

— Corpus Christi June 29, 2010, pet. ref’d) (mem. op., not designated6

for publication) (same). Moreover, even had appellant preserved error, punishment which falls within the limits prescribed by a valid statute, as in this case, is not excessive, cruel, or unusual. See Trevino , 174 S.W.3d at 928.
We overrule appellant’s sole issue.
III. C ONCLUSION We affirm the trial court’s judgment.

DORI CONTRERAS GARZA Justice Do not p ublish. T EX

. R. A PP

. P. 47.2(b) Delivered and filed the 18th day of August , 2011

.