### NUMBER 13 - 11 - 00291 - CR COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI - EDINBURG
JIMMY D. CALLIS, Appellant,

v. THE STATE OF TEXAS, Appellee.

On appeal from the 377th District Court of Victoria County, Texas.

MEMORANDUM OPINION 1 

### Before Chief Justice Valdez and Justices Garza and Vela Memorandum Opinion by Chief Justice Valdez Pursuant to a plea bargain agreement with the State, appellant, Jimmy D. Callis, pleaded guilty to the offense of injury to a child, a third

- degree felony. See T EX

. P ENAL C ODE A NN . § 22.04(a)(3) (West Supp. 2010 ). The trial court deferred adjudication an d placed Callis on community supervision for a period of ten years. Subsequently, the

1 Because this is a memorandum opinion and the parties are familiar with the facts, we will not recite them here except as necessary to advise the parties of the Court’s decision and the basic reasons for it. See T EX

. R. A PP

. P . 47.4.2

State filed a motion to revoke alleging that Callis had violated several terms of community supervision . The trial court found that Callis had violated the terms of

com munity supervision, revoked Callis’s community supervision, found him guilty of the offense of injury to a child, and sentenced him to ten years’ incarceration. By one issue, Callis contends that the punishment imposed constitutes cruel and unusual punish ment in violation of the Eighth Amendment. See U.S. C ONST

. amend. VIII. We affirm.
II. C RUEL AND U NUSUAL P UNISHMENT By his sole issue, Callis contends that the ten

- year sentence constitutes cruel and unusual punishment in violation of the Eighth Amendme nt. See id. Specifically, Callis argues that the sentence is disproportionate to the crime. The Eighth Amendment of the United States Constitution provides that ―[e]xcessive bail shall not be required, nor excessive fines, nor cruel and unusual punishme nt infl icted.‖ Id. The Eighth Amendment applies to punishments imposed by state courts through the Due Process Clause of the Fourteenth Amendment. Id. amend. XIV. This right can be waived by a ―failure to object.‖ Smith v. State , 721 S.W.2d 844, 855 (Tex. Crim. App. 1986). To preserve a complaint of disproportionate sentencing, the criminal defendant must make a timely, specific objection to the trial court or raise the issue in a motion for
new trial. Kim v. State , 283 S.W.3d 473, 475 (Tex. App.

— Fort Worth 2009, pet. ref’d) (citing Rhoades v. State , 934 S.W.2d 113, 120 (Tex. Crim. App. 1996) ); Noland v. State , 264 S.W.3d 144, 151

– 52 (Tex. App.

— Houston [1st Dist.] 2007, pet. ref’d); Trevino v. State , 174 S.W.3d 925, 92 7

– 2 8 (Tex. App.

— Corpus Christi 2005, pet. ref'd) ; Quintana v. State , 777 S.W.2d 474, 479 (Tex. App.

— Corpus Christi 1989, pet. ref’d) (holding defendant waived cruel and unusual punishment argument by failing to object); see T EX

.3

R. A PP

. P . 33.1 (a) . Her e, Callis did not object when the trial court imposed the ten

- year
sentence or complain of the sentence in any post

- trial motion. Therefore, Callis has failed to preserve this issue for our review. See T EX

. R. A PP

. P . 33.1 (a) ; Kim , 283 S.W.3d at 475; Nola nd , 264 S.W.3d at 151

- 52; Trevino , 174 S.W.3d at 927

– 28; Quintana , 777 S.W.2d at 479. Moreover, even if Callis had preserve d error, a punishment falling within the limits prescribed by a valid statute, as in this case, is not excessive, cruel, or unusual. 2 See Trevino , 174 S.W. 3d at 928. We overrule Callis ’s
sole issue.
III. C ONCLUSION We affirm the trial court’s judgment.

__________________ ROGELIO VALDEZ Chief Justice
Do not Publish. T EX

. R. A PP

. P . 47.2(b) Del ivered and filed the 5th day of January , 201 2

.

2 Callis was convicte d of a third

- degree felony with a punishment range of two to ten years’ confinement. See T EX

. P ENAL C ODE A NN . § 12.34(a) (West 2003).