In The 

Court of Appeals 

Seventh District of Texas at Amarillo

No. 07-14-00119-CR 

JOSE GARCIA, APPELLANT 

 

V. 

 

THE STATE OF TEXAS, APPELLEE 

 

On Appeal from the 137th District Court 

Lubbock County, Texas 

Trial Court No. 2012-434,958, Honorable John J. "Trey" McClendon, Presiding 

 

November 7, 2014 

 

MEMORANDUM OPINION 

 

Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ. 

Appellant Jose Garcia waived a jury trial and entered an open plea of guilty to 

one count of aggravated sexual assault of a child.1 After a punishment hearing, the trial 

court assessed punishment at a term of forty years of imprisonment. Appellant presents 

two appellate issues, one challenging his punishment as cruel and unusual, the second 

challenging the admission of rebuttal evidence. We will affirm.

 

1

TEX. PENAL CODE ANN. § 22.021(a)(2)(B) (West 2013). 
2

Background

In May 2012, appellant was charged by an indictment alleging one count of 

aggravated sexual assault of a child under the age of 14 and two counts of indecency 

with a child. The offenses were alleged to have occurred on or about January 1, 2002, 

against a child whose mother was married to appellant at that time.

In June 2013, appellant entered an open plea of guilty to the aggravated sexual 

assault count. The two remaining counts were dismissed. Concerning punishment, the 

State presented the testimony of police officers, the complainant’s mother, the 

complainant, and the nurse who examined the complainant. 

Testimony showed appellant and the child’s mother divorced in 2007. In 2011, 

the complainant, then fourteen, told one of her friends and eventually her mother of 

appellant’s sexual assaults on her when she was about five or six years old. Her 

mother called police. Appellant initially denied the allegations but later admitted to 

police one instance in which the complainant complied when he asked her to “touch and 

kiss his penis.” In her testimony, the complainant described four specific instances of 

sexual assault but said appellant assaulted her on other occasions. 

Appellant did not testify but presented the testimony of four witnesses who 

emphasized his good character and good work habits. The court also reviewed a presentence investigation report. 

In rebuttal, the State called Dr. Beth Shapiro, a licensed marriage and family 

therapist, to rebut appellant’s evidence he was a good candidate for deferred 
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adjudication. Shapiro’s sex-offender assessment of appellant was included in the presentence investigation report. Shapiro testified she found appellant to be “relatively 

emotionally stable, except for some situational anxiety or stress regarding the current

situation.” She opined, “[h]e is definitely in need of sex offender treatment and probably 

could profit from doing so.”

At the time of appellant’s offense, the range of punishment was five to ninetynine years of imprisonment, and deferred adjudication community supervision was 

permitted. The court assessed punishment at forty years of imprisonment. Appellant’s 

motion for new trial was overruled by operation of law. This appeal followed.

Analysis

Cruel and Unusual Punishment

In his first issue, appellant contends the trial court’s sentence of forty years of 

imprisonment constitutes cruel and unusual punishment. He points to the mitigating 

evidence presented at trial, including the assessment of a low re-offending risk, the 

years that elapsed between the offense and trial, appellant’s record showing no prior 

felony convictions and the range permitting deferred adjudication. 

The State notes as an initial matter appellant failed to preserve this issue for our 

review. We agree. 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. See TEX. R. APP. P. 33.1(a); Rhoades v. State, 934 
4

S.W.2d 113, 120 (Tex. Crim. App. 1996) (en banc). Here, appellant failed to object on 

any grounds to the sentence in the trial court. See Curry v. State, 910 S.W.2d 490, 497 

(Tex. Crim. App. 1995) (en banc) (holding defendant failed to preserve cruel and 

unusual punishment claim when he urged no objection in trial court); Ham v. State, 355 

S.W.3d 819, 825 (Tex. App.—Amarillo 2011, pet. ref'd) (same). See also Speckman v. 

State, Nos. 07-13-00232-CR, 07-13-00233-CR, 2014 Tex. App. LEXIS 5615 (Tex. 

App—Amarillo May 23, 2014, no pet.) (mem. op., not designated for publication) (similar 

finding). 

Moreover, even had it been preserved, we could not find the contention 

meritorious. Aggravated sexual assault of a child under the age of 14 was in 2002, and 

presently is, a felony offense of the first degree. See TEX. PENAL CODE ANN. § 22.021(e)

(West 2013). The offense is punishable by imprisonment for life or for any term of not 

more than ninety-nine years or less than five years and a fine not to exceed $10,000. 

TEX. PENAL CODE ANN. § 12.32 (West 2011). We recognize also that in 2002, the law 

permitted the trial court, in its discretion, to defer a finding of guilt of this offense and 

place the defendant on deferred adjudication community supervision. See TEX. CODE 

CRIM. PROC. ANN. art. 42.12, § 5(a) (West 2001), Acts 77th Leg. Sess., chs. 211, 786, 

969, 992, 1159, 1351, 1420. See current version at TEX. CODE CRIM. PROC. ANN. art.

42.12, § 5(a) (West 2013). But the sentence imposed here was well within the 

applicable range of punishment for a first-degree felony offense, and Texas courts have 

traditionally held that, so long as the punishment imposed lies within the range 

prescribed by the Legislature in a valid statute, that punishment is not excessive, cruel, 

or unusual. See, e.g., Darden v. State, 430 S.W.2d 494, 496 (Tex. Crim. App. 1968); 
5

see also Jackson v. State, 680 S.W.2d 809, 814 (Tex. Crim. App. 1984); Rodriguez v. 

State, 917 S.W.2d 90, 92 (Tex. App.— Amarillo 1996, pet. ref'd).

Nonetheless, a prohibition against grossly disproportionate punishment survives 

under the Eighth Amendment to the United States Constitution, separate and apart from 

any consideration of whether the punishment imposed lies within the legislatively 

prescribed range of punishment. See U.S. CONST. AMEND. VIII; Solem v. Helm, 463 U.S. 

277, 290, 103 S. Ct. 3001, 77 L. Ed. 2d 637 (1983); Harmelin v. Michigan, 501 U.S. 

957, 985, 989-90, 111 S. Ct. 2680, 115 L. Ed. 2d 836 (1991) (plurality op.); Lackey v. 

State, 881 S.W.2d 418, 420-21 (Tex. App.—Dallas 1994, pet. ref'd). Assessing such a 

claim, we make an initial, threshold comparison of the gravity of the offense with the 

severity of the sentence. See Harmelin, 501 U.S. at 1004-05 (Kennedy, J., concurring); 

McGruder v. Puckett, 954 F.2d 313, 316 (5th Cir. 1992). Then, and only if our initial 

comparison creates an inference that the sentence was grossly disproportionate to the 

offense, do we consider the other two Solem factors: (1) sentences for similar crimes in

the same jurisdiction and (2) sentences for the same crime in other jurisdictions. See 

McGruder, 954 F.2d at 316; Lackey, 881 S.W.2d at 420-21. See also Jones v. State,

No. 07-13-00430-CR, 2014 Tex. App. LEXIS 5694 (Tex. App.—Amarillo May 28, 2014, 

no pet.) (mem. op., not designated for publication) (noting same).

Appellant points to nothing in the record here, and we find nothing, that would 

raise the inference that the forty-year sentence imposed was a grossly disproportionate 

punishment for the first-degree felony offense of aggravated sexual assault of a child. 

Finding no inference of gross disproportionality, we do not reach the considerations 
6

regarding sentences for similar crimes in the same jurisdiction and in other jurisdictions. 

See McGruder, 954 F.2d at 316.

We overrule appellant’s first issue.

Rebuttal Testimony

In appellant’s second issue, he contends the trial court erred in allowing the State 

to present the rebuttal testimony of Dr. Shapiro because her testimony violated Rule of 

Evidence 403, in that it was substantially more prejudicial than probative. In support of 

his argument, appellant notes he objected at trial to Shapiro’s testimony because the 

State indicated even before appellant’s case-in-chief on punishment was presented that 

it intended to call the therapist as a rebuttal witness. He also objected that her 

testimony was outside the scope of his case-in-chief. Counsel asserted, “Your Honor, 

none of that information was gone into in my case in chief. The purpose of rebuttal is to 

rebut what evidence that I bring in, therefore, this is improper.” 

The State argues appellant’s contention on appeal that Shapiro’s testimony was 

inadmissible under rule 4032 was not preserved for our review. We must agree.

The error alleged on appeal must comport with the objection submitted to the trial 

court. See TEX. R. APP. P. 33.1; Heidelberg v. State, 144 S.W.3d 535, 537 (Tex. Crim. 

App. 2004) ("the legal basis of a complaint raised on appeal cannot vary from that 

raised at trial"). To preserve error for appellate review on a contention that evidence 

 

2 Rule 403 provides: “Although relevant, evidence may be excluded if its probative value is 

substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, 

or by considerations of undue delay, or needless presentation of cumulative evidence.” TEX. R. EVID. 403.
7

was inadmissible under rule 403, a separate objection in the trial court is necessary. 

Nelson v. State, 864 S.W.2d 496, 499 (Tex. Crim. App. 1993). 

After reviewing the record, we agree with the State that while appellant objected 

to Shapiro’s testimony on two grounds, and made additional objections during her 

testimony, none of them were on the basis that her testimony was substantially more 

prejudicial than probative. Because appellant’s complaint on appeal does not comport 

with any of the objections made at trial, it presents nothing for our review. His second 

issue is overruled.

Conclusion

Having overruled each of appellant’s issues, we affirm the judgment of the trial 

court.

James T. Campbell

 Justice

Do not publish.