## NO. 12

- 0 9

- 00 235

- C R

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

DANIEL GUZMAN

, APPELLANT ' APPEAL FROM THE 7TH

V. ' JUDICIAL DISTRICT CO URT OF
THE STATE OF TEXAS, ' SMITH COUNTY, TEXAS APPELLEE MEMORANDUM OPINION
Da niel Guzman appeals his sentence following his conviction for aggravated robbery after the trial court proceeded to revoke his deferred adjudication community supervision and adjudicate his guilt. In a single issue, Appellant argues that the evidence
is f actually insufficient to support his punishment and that his sentence constitutes cruel and unusual punishment. We affirm.

B ACKGROUND On January 20 , 2009, Appellant was sentenced to five years of deferred adjudication community supervision (“community supervision”) for aggravated robbery, a first degree felony. Among other things, the terms of Appellant’s community supervision required him to “commit no offense against the laws of this state,” to refrain from drinking or possessing alcoholic beverages at any time, and to conduct six hours of community service each month until he reached 320 hours, measured from February,
2009. On April 18, 2009, Appellant was arrested for public intoxication after consuming alcohol. Following his arrest, Appellant’s co mmunity supervision officer recommended that the court amend the terms of his community supervision by requiring him to submit to an alcohol treatment program and to complete the Lifeskills Program. The trial court signed an order adding the requested con ditions. On June 2, 2009, Appellant was arrested a second time for operating a motor vehicle without a license. Appellant also2

failed to complete his community service requirement for the months of February, April, and May 2009. Consequently, the State f iled its “Application to Proceed to Final Adjudication,” asking the court to revoke Appellant’s community supervision, adjudicate his guilt on the underlying aggravated robbery offense, and assess punishment. Appellant pleaded “true” to all three alleged violations of his community supervision. After a hearing, the trial court revoked Appellant’s community supervision, found him guilty of the underlying aggravated robbery offense, and assessed punishment at fifteen years of imprisonment. Appellant timely appealed.
P UNISHMENT Appellant, in a single multifarious issue, contends that the evidence was factually insufficient to support the assessed sentence, and that the length of his sentence was
“harsh and excessive” under the circumstances.
Factual Suffici ency

– Punishment Evidence Appellant contends that “the standard of review for factual sufficiency is similar to the sufficiency, or lack thereof, of the evidence, considered by the Trial Court to hand down such a harsh sentence on Appellant.” He argues t hat we “must consider whether the great weight and preponderance of the evidence is sufficient to justify a remand for a new trial.” We construe Appellant’s arguments as a challenge to the factual sufficiency of the evidence on punishment.
A factual suff

iciency review of the evidence supporting the assessment of punishment is inappropriate. See Robertson v. State , 245 S.W.3d 545, 548

- 49 (Tex. App.

— Tyler 2007 , pet. ref’d ); see also Bradfield v. State , 42 S.W.3d 350, 351 (Tex. App.

— Eastland 2001, pet. ref’ d) . To the extent that Appellant challenges the factual sufficiency of the punishment evidence, his sole issue is overruled.
Cruel and Unusual Punishment Appellant also argues that the public intoxication and driving without a license

arrests were not sev ere enough to warrant such a “harsh and excessive sentence” for the underlying aggravated robbery offense. We construe this as a constitutional claim that the sentence was disproportionate to the underlying offense for which he was convicted. Appellant d id not object to his sentence when it was assessed. Because Appellant did not raise this objection in the trial court, he has not preserved th e issue for appellate
review. See T EX

. R. A PP

. P. 33.1(a); See Schneider v. State , 645 S.W.2d 463, 466 (Tex.3

Cri m. App. 1983); Jacobs v. State , 80 S.W.3d 631, 632

- 33 (Tex. App.

— Tyler 2002, no pet.).
But e ven if Appellant had preserved this complaint for review, he still would not prevail. Where deferred adjudication community supervision is revoked, the trial cour t
may generally impose any punishment authorized by statute within the statutory range

. Von Schounmacher v. State , 5 S.W.3d 221, 223 (Tex. Crim. App. 1999) (per curiam) ; Jackson , 680 S.W.2d at 814

. Appellant was convicted of aggravated robbery, a first
d egree felony, with a possible punishment of life or any term of not more than ninety

nine years or less than five years. See T EX

. P ENAL C ODE A NN

. §§ 12.32 (Vernon Supp. 2009); 29.03 (Vernon 2003). He was sentenced to fifteen years of imprisonment, which is within the statutory range. Appellant concedes that his punishment is within the statutory range, but he implicitly contends it is grossly disproportionate to the facts of this case in violation of the Eighth Amendment. See U.S. C ONST

. amend. VIII; Sol em v. Helm , 463 U.S. 277,
103 S. Ct. 3001, 3006, 77 L. Ed. 2d 637 (1983). 1 The proportionality of a sentence is evaluated by considering 1) the gravity of the offense and the harshness of the penalty, 2) the sentences imposed on other criminals in the sam e jurisdiction, and 3) the sentences imposed for commission of the same crime in other jurisdictions. Solem , 463 U.S. at 292, 103 S. Ct. at 3011. Unless Appellant establishes that his sentence is grossly disproportionate to his crime, we need not address the second and third criteria set out in
Solem

. See McGruder v. Puckett , 954 F.2d 313, 316 (5th Cir. 1992); see also Robertson
v. State , 245 S.W.3d 545, 549 (Tex. App.

— Tyler 2007, pet. ref’d). In determining whether Appellant’s sentence is grossly dispr oportionate, we are guided by the holding in Rummel v. Estelle , 445 U.S. 263, 100 S. Ct . 1133, 63 L. Ed. 2d 382 (1980). After considering the facts of the instant case in light of Rummel , we conclude that Appellant’s sentence was not unconstitutionally di sproportionate. See id

. , 445 U.S. at 266, 100 S. Ct. at 1134

- 35 (holding that life sentence is not cruel and unusual punishment for obtaining $120.75 by false pretenses where appellant had a prior felony
conviction for fraudulent use of credit card to obt ain $80 worth of goods or services and another for passing a forged check in amount of $28.36). Absent a threshold showing of

1 Texas c ourts have consistently concluded that there is no significan t difference between the United States and Texas constitutional provisions prohibiting cruel and unusual punishment

. See , e.g., Cantu v. State , 939 S.W.2d 627, 645 (Tex. Crim. App. 1997) (comparing Texas Constitution article I, section 13 with United State s Constitution amendment VIII).4

disproportionality, we need not address the second and third Solem criteria. Therefore, we cannot conclude that Appellant’s sent ence constitute d cruel and unusual punishment. The remainder of Appellant’s sole issue is overruled.

D ISPOSITION We affirm the judgment of the trial court.

JAMES T. WORTHEN Chief Justice

Opinion de livered May 5 , 2010. Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.

( DO NOT PUBLISH)