## NUMBER 13 -22-00384-CR COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI

– EDINBURG

DAVID MICHAEL ISASSI , Appellant,

v. THE STATE OF TEXAS , Appellee.
On appeal from the 105th District Court of Kleberg C ounty, Texas.



## MEMORANDUM OPINION Before Justices Tijerina, Silva, and Peña

Memorandum Opinion by Justice Peña Appellant David Mich ael Isassi appeals the trial court ’ s judgment revoking his community supervision, adjudicating him guilty of aggravated assaul t with a deadly
weapon , a second

- degree felony, see T EX

. P ENAL C ODE A NN . § 22.0 2 (a)(2) , and sentencing him to twenty years ’ imprisonment. In one issue , Isassi argues his twenty

- year2 sentence is grossly disproportionate to the seriousness of the offense in violation of the Eighth Amendment ’ s proscription of cruel and unusual punishment. See U.S. C ONST

. amend VIII. We affirm. I. B ACKGROUND A grand jury returned an indictment charging Isassi with two counts of aggravated assault . The first count alleged that Isa s si caus ed bodily injury to the complainant while using or exhibiting a hammer. See id . The second count alleged that Isa s si threaten ed the complainant with imminent bodily injury while using or exhibiting a knife

. See id. Isassi pleaded guilty to count two pursuant to a plea agreement in exchange for the State ’ s recommendation to dismiss count one. The trial court accepted Isas s i ’ s guilty plea , ordered the dismissal of count one, and placed Isa s si on deferred adjudication

- community supervision for seven years. The trial court later held a hearing on the State ’ s second amended motion to revoke community supervision and adjudicate guilt , during which the State proceeded on the following alleged violations: 1 (1) failing to abide by zero tolerance supervision; ( 2 ) possessing a firearm; ( 3 ) tampering with evidence; ( 4 ) associating with persons of disreputable or harmful character; ( 5 ) admitting to marijuana use ; ( 6

– 7 ) testing positive for c ocaine and marijuana; ( 8 ) failing to report to Isassi ’ s community supervision officer; ( 9 ) failure to submit to a urinalysis; and ( 10

– 19 ) failing to pay court costs , fines, and fees. Isas s i plead ed not true t o each alleged violation.

1 The State filed two previous motions to revoke and adjudicate guilt, which resulted in the trial court amending the conditions of Isa s si ’ s community supervision

. We renumber the allegations set out in the State ’ s live motion to reflect its abandonment of four counts.3 After hearing evidence, the trial court found the allegations that Isas s i tampered with evidence and tested positive for cocaine and marijuana not true. The tr ial court found
true the remaining allegations. The trial court revoked Isa s si ’ s community supervision, adjudicated him guilty for aggravated assault , and sentenced Isa s si to twenty years ’ imprisonment. This appeal followed. II. C RUEL & U NUSUAL P UNISHMENT A. Standard of Review & Applicable Law The Eighth Amendment

— made applicable to the states through the Fourteenth Amendment

— prohibits the imposition of cruel and unusual punishments, which includes extreme sentences that are grossly disproportionate to the crime. Graham v. Florida , 560 U.S. 48, 58

– 60 (2010); see U.S. C ONST . amend. VIII (“Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishment s inflicted.”) ; id. amend. XIV

. An allegation of excessive or disproportionate punishment is a legal claim based on a “narrow principle that does not require strict proportionality between the crime and the sentence.” State v. Simpson , 488 S.W.3d 318, 322 (Tex. Crim. App. 2016) (citing Harmelin v. Michigan , 501 U.S. 957, 1001 (1991) (Kennedy, J., concurring) )

. A successful challenge to proportionality is exceedingly rare and requires a finding of “gross disproportionality.” Id. at 322

– 23 (citing Lockyer v. Andrade , 538 U.S. 63, 73 (2003))

. To determine whether a sentence is grossly d isproportionate, “a court must judge the severity of the sentence in light of the harm caused or threatened to the victim, the culpability of the offender, and the offender ’ s prior adjudicated and unadjudicated offenses.” Id. at 323 (citing Graham , 560 U.S. at 60) . “In the rare case in which this4 threshold comparison leads to an inference of gross disproportionality, the court should then compare the defendant ’ s sentence with the sentences received by other offenders in the same jurisdiction and with the sentences imposed for the same crime in other jurisdictions.” Id

. “ If this comparative analysis validates an initial judgment that the sentence is grossly disproportionate, the sentence is cruel and unusual. ” I d.

“ Only twice has the Supreme Court held that a non

- capital sentence imposed on an adult was constitutionally disproportionate. ” Id. ( first citing Solem v. Helm , 463 U.S. 277 (1983) ( holding that life imprisonment without parole was a grossly disproportionate sentence for the crime of utteri ng a no - account check for $100 ) ; and then citing Weems v. United States , 217 U.S. 349 (1910) ( holding that fifteen years punishment in a prison
camp was grossly disproportionate to the crime of falsifying a public record) ). A trial
court ’ s discretion to assess punishment within th e statutory range is essentially unfettered. Ex parte Chavez , 213 S.W.3d 320, 323 (Tex. Crim. App. 2006 ). Generally, punishment assessed within the statutory limits is not excessive, cruel, or unusual. See Trevino v. State , 174 S.W.3d 925, 928 (Tex. App.

— Corpus Christi

– Edinburg 2005, pet. ref ’ d)

. Aggravated assault with a deadly weapon is a second

- degree felon y punishable by imprisonment “ for any term of not more than 20 years or less than 2 years. ” T EX

. P EN AL C ODE A NN

. § 12.33 (a). B. Preservation “[ W e ] m ay not reverse a judgment of conviction without first addressing the issue of error preservation.” Darcy v. State , 488 S.W.3d 325, 328 (Tex. Crim. App. 2016) ( first citing Gipson v. State , 383 S.W.3d 152, 159 (Tex. Crim. App. 2012); and then citing5 Meadoux v. State , 325 S.W.3d 189, 193 n.5 (Tex. Crim. App. 2010) )

. To preserve a complaint that a sentence constitutes 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. See T EX

. R. A PP

. P. 33.1(a); Smith v. State , 721 S.W.2d 844, 855 (Tex. Crim. App. 1986); Navarro v. State , 588 S.W.3d 689, 690 (Tex. App.

— Texarkana 2019, no pet.) (holding that to preserve a disproportionate

- sentencing complaint, the defendant must make a timely, specific objection in the trial court or raise the issue in a motion for new trial); Toledo v. State , 519 S.W.3d 273, 284 (Tex. App.

— Houston [1st Dist.] 2017, pet. ref ’ d) (same). C. Analysis Isas s i did not object in the trial court that his sentence was disproportionate to the offense charged or unconstitutional in any manner . Furthermore, the trial court ’ s twenty

year sentence falls within the statutory punishment range for a second

- degree felony

. See T EX

. P ENAL C ODE A NN

. § 12. 33(a) . Accordingly, we hold that Isas s i failed to preserve this complaint for our review. See Trevino , 174 S.W.3d at 927

– 28 (“Because the senten ce imposed is within the punishment range and is not illegal, we conclude that the rights [appellant] 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.”). Even if we were to address Isas s i ’ s E ight h A mendment claim and assume a threshold inference of disproportionality, he presented no evidence in the trial court , and presents no argument on appeal , “compar [ing] [his] sentence with the sentences received by other offenders in the same jurisdiction and with the sentences imposed for the same6 crime in other jurisdictions

. ” Simpson , 488 S.W.3d at 323. Absent this comparative analysis, we are unable to conclude tha t the sentences are grossly disproportionate

. See id. ; Quick v. State , 557 S.W.3d 775, 789 (Tex. App.

— Houston [14th Dist. ] 2018, pet ref’d) (concluding that twenty

- year sentence for aggravated assault was not grossly disproportionate); see also Esquivel v. State , No. 13

- 21

- 00179

- CR, 2022 WL 17492274, at *2 (Tex. App.

— Corpus Christi

– Edinburg Dec. 8, 2022, pet. ref ’ d ) (mem. op., not designated for publication) (rejecti ng E ight h A mendment challenge where appellant offered no comparative evidence of sentences received by other offenders). We overrule Isa s si ’ s sole issue

. I II

. C ONCLUSION We affirm the trial court ’ s judgment. L. ARON PEÑA Justice Do not publish. T EX

. R. A PP

. P. 47.2 ( b ). Delivered and filed on the 8th day of June , 202 3

.