                                NUMBER 13-11-00349-CR

                                COURT OF APPEALS

                     THIRTEENTH DISTRICT OF TEXAS

                        CORPUS CHRISTI - EDINBURG

JOHN ANTHONY GOMEZ,                                                                  Appellant,

                                                v.

THE STATE OF TEXAS,                                                                    Appellee.


                      On appeal from the 105th District Court
                            of Kleberg County, Texas.


                           MEMORANDUM OPINION
              Before Justices Rodriguez, Benavides, and Perkes
                 Memorandum Opinion by Justice Benavides
       Appellant, John Anthony Gomez, appeals the trial court’s sentence of twenty-five

years’ imprisonment after the trial court revoked Gomez’s community supervision and

adjudicated guilt.    Gomez was convicted of aggravated assault with a deadly weapon,

which was enhanced to a first degree felony.1 Gomez appeals on the grounds that the


       1
         Gomez is a repeat felony offender, which elevates his second-degree felony to a first-degree
felony. TEX. PEN. CODE ANN. § 12.42(b) (West 2011).
punishment was disproportionate to the seriousness of the alleged offense, in violation of

the Eighth and Fourteenth amendments of the United States Constitution.                  U.S. CONST.

amend. VIII, XIV.      Because we conclude that Gomez did not meet his burden of proof

that the sentence is grossly disproportionate to the offense, we affirm.

                                          I. BACKGROUND

         On April 22, 2010, Gomez was indicted for the second-degree felony of

aggravated assault with a deadly weapon.               See TEX. PEN. CODE ANN. § 22.02(a) (West

2011).       Punishment was enhanced to a first-degree felony due to a previous

conviction.2 Gomez pleaded guilty to aggravated assault with a deadly weapon, and

pleaded true to the enhancement on June 2, 2010.               Adjudication of guilt was deferred

and the court ordered Gomez to ten years of community supervision.                  TEX. CODE CRIM.

PROC. ANN. art. 42.12 (West 2011).

         On December 20, 2011, the State filed a motion to revoke community supervision

and to adjudicate guilt alleging, in twenty counts, that Gomez had violated certain

conditions of his probation. The court sanctioned Gomez after a hearing on the motion

to revoke on February 2, 2011.           Gomez was ordered to a substance abuse felony

punishment facility, an intensive supervision program, weekly urinalysis, and an anger

management program.

         The State filed another motion to revoke community supervision and to adjudicate

guilt on March 10, 2011 and amended that motion on April 12, 2011.                  Gomez pleaded

not true to all ten counts set forth in the State’s motion.       At the hearing on May 13, 2011,

Officers Eric Escobedo, George Flores, Ryan Webb, and Brenda Tijerina testified that on

         2
         Gomez was previously convicted of the felony offense of indecency with a child. See id. § 21.11
(West 2011).

                                                   2
March 4, 2011, they responded to a call from an alleged victim of family violence, Ms.

Salinas, who stated that Gomez had assaulted her and kept her against her will. At the

hearing, Ms. Salinas stated that she had called the police and said Gomez assaulted her

and kept her against her will because she was mad at him.       The officers testified that

Ms. Salinas was visibly shaken and appeared scared of Gomez when they arrived at the

scene.      After struggling with the officers, Gomez was subdued, arrested and

transported to the Kleberg County jail.

          The trial court found that Gomez violated his community supervision by resisting

arrest; committing the offense of assault (terroristic threat family violence); failing to

participate and complete an intensive supervision program; failing to report any new and

subsequent arrests within forty-eight hours; and failing to attend a battering intervention

and prevention program.       The court revoked Gomez’s community supervision and

adjudicated guilt for aggravated assault with a deadly weapon. Thereafter, the trial

court sentenced Gomez to twenty-five years’ imprisonment.

                                          II. ANALYSIS

         Gomez challenges the trial court’s sentence of twenty-five years’ imprisonment

because he believes the punishment is disproportionate to the seriousness of the

alleged offense.    As a threshold matter, Gomez has failed to preserve this error for our

review.    Gomez’s complaint was not made to the trial court by a timely request, he did

not state the specific grounds for objection, and he did not obtain an adverse ruling.

See TEX. R. APP. P. 33.1. Therefore, Gomez did not sufficiently preserve his complaint

of a disproportionate sentence for appeal.     See id.




                                               3
       Nevertheless, Gomez attempts to bypass the issue of waiver by citing to the

Lovejoy decision. Lovejoy v. Lillie, 569 S.W.2d 501, 503 (Tex. Civ. App.—Tyler 1978,

writ ref’d n.r.e). Gomez relies on Lovejoy for the proposition that it is within a court’s

power to review a sentence imposed by judge or jury and to determine whether such

sentence passes constitutional muster, despite no objection made during trial.      See id.

The Lovejoy opinion is distinguishable from this case because Lovejoy deals with a

court’s power to adjudicate the constitutionality of a statute, regardless of when or how

the question is raised, if its unconstitutionality is obvious and apparent. See id.

Although Gomez’s issue challenges the constitutionality of a punishment statute as

applied, its unconstitutionality is not obvious or apparent and therefore not subject to our

review.   See id.

       Nonetheless, assuming without deciding that Gomez had preserved error, we

conclude that the punishment is not disproportionate to the seriousness of the crime to

constitute cruel and unusual punishment. See U.S. CONST. amend. VIII.             The U.S.

Supreme Court has stated that “although a sentence may be within the range permitted

by statute, in limited situations it may nonetheless run afoul of the Eighth Amendment

prohibition against cruel and unusual punishment.”     Solem v. Helm, 463 U.S. 277, 290

(1983); see Baldridge v. State, 77 S.W.3d 890, 893 (Tex. App.—Houston [14th Dist.]

2002, pet. ref’d). Punishment will be grossly disproportionate to a crime only when an

objective comparison of the gravity of the offense against the severity of the sentence

reveals the sentence to be extreme.    Baldridge, 77 S.W.3d 890 at 893.     Only if we infer

that the sentence is grossly disproportionate to the offense, will we then consider the

remaining factors of the Solem test and compare Gomez’s sentence to (1) sentences for


                                             4
similar crimes in the same jurisdiction; and (2) sentences for the same crime in other

jurisdictions.   Id.; see Solem, 463 U.S. 277 at 291.

       Gomez suggests that if we applied the facts of his case to those three standards

set forth in Solem it could move through the first threshold standard by finding that

proportionality was an issue.       However, it has long been recognized that if the

punishment is within the range established by the legislature, there is no violation of the

state constitutional provisions against cruel and unusual punishment.       Baldridge, 77

S.W.3d 890 at 893. An individual adjudicated guilty of a felony of the first degree shall

be punished by imprisonment in the Texas Department of Criminal Justice for life or for

any term of not more than ninety-nine years or less than five years.      TEX. PEN. CODE

ANN. § 12.32(a) (West 2011).         Here, Gomez was sentenced to twenty-five years’

imprisonment, which was well within the statutory limitation.

       Gomez only goes as far as to argue that we could find that proportionality was an

issue. He neither argues nor cites to authority in his favor, and, thus, he does not meet

the threshold of proportionality.   Therefore, we need not analyze the two Solem factors.

Gomez’s sole issue is overruled.

                                       III. CONCLUSION

       The trial court’s judgment is affirmed.



                                                         ________________________
                                                         GINA M. BENAVIDES,
                                                         Justice
Do not publish.
TEX. R. APP. P. 47.2 (b).

Delivered and filed the
26th day of July, 2012.

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