Opinion filed August 4, 2022

In The

Eleventh Court of Appeals __________

No. 11-20-00242-CR

__________

ADRIAN ARAUJO, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 161st District Court

Ector County, Texas

Trial Court Cause No. B-19-0243-CR

M E M O R A N D U M O P I N I O N

Adrian Araujo, Appellant, appeals from a judgment adjudicating guilt and 

assessing punishment for the offense of aggravated assault, using a deadly weapon 

and causing serious bodily injury to a member of his family, a first-degree felony. 

TEX. PENAL CODE ANN. § 22.02(a), (b)(1) (West Supp. 2021); TEX. FAM.CODE ANN.

§ 71.003 (West 2019); see also TEX. GOV’T CODE ANN. § 573.024 (West 2021). The 

trial court assessed punishment at confinement for a term of twenty-five years in the 
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Institutional Division of the Texas Department of Criminal Justice. In a single issue, 

Appellant contends that his punishment was grossly disproportionate to the conduct 

at issue and in violation of the Eighth Amendment of the United States Constitution. 

See U.S. CONST. amend VIII. We affirm.

Procedural History

Appellant entered a plea of guilty in August 2019 for “aggravated assault [of 

a] date/family/house[hold member causing] serious bodily injury.” See PENAL 

§ 22.02(a), (b)(1). The trial court deferred a finding of guilt and placed Appellant 

on deferred adjudication community supervision for a term of four years. In 

September 2020, the State filed a motion for a warrant and to adjudicate guilt based 

on two allegations of Appellant violating the terms of his community supervision. 

The State alleged that Appellant failed to abstain from consuming alcohol and failed 

to maintain curfew. At a hearing before the trial court on October 7, 2020, Appellant 

pled “true” to both allegations. 

Following Appellant’s pleas of “true” to both allegations, the trial court heard 

evidence from a detective, a probation officer, a substance abuse counselor, and two 

police officers. The State brought forth the witnesses for the purpose of providing 

the trial court with information to determine punishment. Hearing the evidence, the 

trial court found Appellant guilty of the underlying offense and assessed punishment 

at twenty-five years’ confinement. Following the judgment, Appellant filed a 

motion for new trial and motion in arrest of judgment. See TEX. R. APP. P. 21, 22.

In a single issue, Appellant argues that the punishment assessed by the trial 

court was grossly excessive and violated the Eighth Amendment of the United States 

Constitution. Appellant contends that he was not given credit for the time he spent 

on deferred adjudication community supervision and that the trial court ignored 

evidence that the offense was not serious. 
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Appellate Standing and Preservation

The present proceeding is a direct appeal of the revocation and adjudication 

proceedings, not a direct appeal from Appellant’s original plea proceeding. In 

Manuel v. State, the Texas Court of Criminal Appeals held that “a defendant placed 

on deferred adjudication community supervision may raise issues relating to the 

original plea proceeding, such as evidentiary sufficiency, only in appeals taken when 

deferred adjudication community supervision is first imposed.” 994 S.W.2d 658, 

661–62 (Tex. Crim. App. 1999). In an appeal from a revocation proceeding, the 

defendant is generally limited to challenging the grounds for revocation. See

Wright v. State, 506 S.W.3d 478, 481 (Tex. Crim. App. 2016) (“The general rule is 

that an attack on the original conviction in an appeal from revocation proceedings is 

a collateral attack and is not allowed.”). Any attempt by Appellant to challenge the 

elements of the indictment to which he pleaded guilty and for which he received

deferred adjudication are not reviewable in this appeal.1

 Appellant does not 

challenge his pleas of “true,” only the punishment assessed by the trial court. 

To preserve a complaint that a sentence constitutes cruel and unusual 

punishment, a defendant must first raise the issue in the trial court. TEX. R.

APP. P. 33.1(a); Burt v. State, 396 S.W.3d 574, 577 (Tex. Crim. App. 2013) (“In 

some instances, an appellant may preserve a sentencing issue by raising it in a motion 

1

In his argument before the trial court and in a single footnote of his appellate brief, Appellant 

questions whether the victim constituted “family” according to the Family Code. See FAM. § 71.003

(“‘Family’ includes individuals related by consanguinity or affinity . . . .”); GOV’T § 573.024 (“Two 

individuals are related to each other by affinity if . . . (2) the spouse of one of the individuals is related by 

consanguinity to the other individual.”). Assault on a family member raises the offense from a seconddegree to a first-degree felony if the defendant uses a deadly weapon and causes serious bodily injury. 

PENAL § 22.02(b)(1). This potential issue is not reviewable in this appeal. The indictment described the 

victim as a “a member of the defendant’s family, as described by Section 71.003 of the Texas Family 

Code”—to which Appellant pleaded guilty and, in doing so, acknowledged that the victim was a member 

of Appellant’s “family.” If we were to assume that the referenced footnote in Appellant’s brief rose to the 

level of an issue for appeal, it would be “a collateral attack [that] is not allowed” and that we would be 

required to dismiss for want of jurisdiction. See Wright v. State, 506 S.W.3d 478, 481 (Tex. Crim. App. 

2016); Schibi v. State, 635 S.W.3d 461, 464–66 (Tex. App.—Eastland 2021, no pet.).
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for new trial.”). Appellant did not object before the trial court, under constitutional 

or other grounds, that the sentence was cruel, unusual, excessive, or disproportionate 

to sentences that other individuals received for the same offense. Therefore, 

Appellant failed to preserve his complaint for our review. See Curry v. State, 910 

S.W.2d 490, 497 (Tex. Crim. App. 1995) (failing to object at trial waives a claim of 

cruel and unusual punishment under the United States Constitution).

The Eighth Amendment

Even if Appellant had preserved the issue, his sentence does not constitute 

cruel and unusual punishment, or even grossly disproportionate punishment. When 

we review a trial court’s sentencing determination, “a great deal of discretion is 

allowed the sentencing judge.” Jackson v. State, 680 S.W.2d 809, 814 (Tex. Crim. 

App. 1984). We will not disturb a trial court’s decision as to punishment “absent a 

showing of abuse of discretion and harm.” Id. (citing Hogan v. State, 529 S.W.2d 

515 (Tex. Crim. App. 1975)). To run afoul of the Eighth Amendment, a sentence 

must be grossly disproportionate to the crime. State v. Simpson, 488 S.W.3d 318, 

322 (Tex. Crim. App. 2016) (citing Ewing v. California, 538 U.S. 11, 23 (2003) 

(plurality opinion)). A punishment for a term of years will be grossly 

disproportionate “only in the exceedingly rare or extreme case.” Id. at 322–23 

(citing Lockyer v. Andrade, 538 U.S. 63, 73 (2003)). Further, a punishment that falls 

within the statutory range determined appropriate by the legislature for an offense 

will generally not be considered “excessive, cruel, or unusual.” Id. at 323 (citing 

Ex parte Chavez, 213 S.W.3d 320, 323–24 (Tex. Crim. App. 2006)). 

Appellant pleaded guilty to the first-degree felony offense of aggravated 

assault. See PENAL § 22.02(a), (b)(1). The punishment range for a first-degree 

felony is imprisonment for five to ninety-nine years or life. Id. § 12.32. Appellant’s 

twenty-five-year sentence falls within the statutory punishment range. A sentence 

within the statutory range is rarely cruel or unusual. See Simpson, 488 S.W.3d at 
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322. To determine whether a sentence for a term of years is grossly disproportionate 

to the offense committed, we “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. (citing Graham v. 

Florida, 560 U.S. 48, 60 (2010); McGruder v. Puckett, 954 F.2d 313, 316 (5th Cir. 

1992)). Only if grossly disproportionate to the offense, must we then compare 

Appellant’s sentence with the sentences received for similar crimes in this 

jurisdiction or in other jurisdictions. Bradfield v. State, 42 S.W.3d 350, 353–54 

(Tex. App.—Eastland 2001, pet. ref’d).

Appellant, on or about January 8, 2019, used a knife to cut the neck of a family 

member during an assault. The trial court heard testimony that Appellant’s uncle

sustained serious cuts to his neck, that Appellant did not ever take responsibility for 

his violent actions, that he violated certain conditions of his probation, and that his 

probation officer believed he could not be successful on probation moving forward. 

The State also presented evidence that Appellant blacks out when he drinks alcohol

and that Appellant has not stopped drinking alcohol, despite telling his substance 

abuse counselor in June 2020 that he had stopped drinking alcohol in January 2018.

Appellant presented no witnesses.

Appellant’s punishment was assessed at imprisonment for twenty-five years, 

which is closer to the statutory minimum of five years than it is to the statutory 

maximum of ninety-nine years or life. See PENAL § 12.32. While Appellant may 

have presented argument that his sentence was too harsh, he did not provide evidence 

that it was unconstitutional. See Simpson, 488 S.W.3d at 324. Generally, a sentence 

for a term of years that falls within the statutory range prescribed by the legislature 

will not amount to a cruel and unusual punishment. Id. at 322. In light of (1) the 

gravity of the offense of assault using a deadly weapon upon and causing serious 

bodily injury to a family member and (2) the punishment being set at the lower end 
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of the statutory range, no threshold inference exists that Appellant’s punishment was

grossly disproportionate. As such, we need not complete further analysis to 

conclude that Appellant’s sentence of twenty-five years of confinement did not 

violate the Eighth Amendment. Id. at 324. We overrule Appellant’s sole issue on 

appeal.

This Court’s Ruling

We affirm the judgment of the trial court. 

W. BRUCE WILLIAMS

JUSTICE

August 4, 2022

Do not publish. See TEX. R. APP. P. 47.2(b).

Panel consists of: Bailey, C.J., 

Trotter, J., and Williams, J.