                             NUMBER 13-19-00142-CR

                            COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                    CORPUS CHRISTI – EDINBURG


JACOB CABALLERO,                                                             Appellant,

                                            v.

THE STATE OF TEXAS,                                                          Appellee.


                    On appeal from the 156th District Court
                           of Bee County, Texas.


                         MEMORANDUM OPINION
Before Chief Justice Contreras and Justices Benavides and Longoria
         Memorandum Opinion by Chief Justice Contreras

      Pursuant to a guilty plea, appellant Jacob Caballero was convicted of unauthorized

use of a motor vehicle, a state jail felony. See TEX. PENAL CODE ANN. § 31.07. He pleaded

true to enhancement paragraphs alleging that he had previously been convicted of three

state jail felonies, and the trial court found the paragraphs true, thereby enhancing the

punishment to that of a third-degree felony. See id. § 12.425(a). The trial court sentenced
appellant to six years’ imprisonment. By one issue, appellant argues that his sentence is

unconstitutionally disproportionate to the seriousness of the offense. We affirm.

                      I. APPLICABLE LAW AND STANDARD OF REVIEW

       The Eighth Amendment of the United States Constitution provides that “[e]xcessive

bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishment

inflicted.” U.S. CONST. amend. VIII; see TEX. CONST. art. 1, § 13. It applies to punishments

imposed by state courts through the Due Process Clause of the Fourteenth Amendment.

See U.S. CONST. amend. XIV. The Eighth Amendment prohibits punishments that are

“grossly disproportionate to the severity of the crime” as well as punishments that do not

serve any “penological purpose.” Bucklew v. Precythe, 139 S. Ct. 1112, 1144 (2019)

(citing Estelle v. Gamble, 429 U.S. 97, 103 & n.7 (1976)). However, “[o]utside the context

of capital punishment, successful challenges to the proportionality of particular sentences

have been exceedingly rare.” Ewing v. California, 538 U.S. 11, 21 (2003); State v.

Simpson, 488 S.W.3d 318, 323 (Tex. Crim. App. 2016); see, e.g., Solem v. Helm, 463

U.S. 277, 303 (1983) (concluding that life imprisonment without parole was a grossly

disproportionate sentence for the crime of “uttering a no-account check” for $100);

Weems v. United States, 217 U.S. 349, 383 (1910) (concluding that punishment of fifteen

years in a prison camp was grossly disproportionate to the crime of falsifying a public

record). Generally, as long as a sentence is legal and assessed within the legislatively

determined range, it will not be disturbed on appeal. Ex parte Chavez, 213 S.W.3d 320,

323–24 (Tex. Crim. App. 2006) (orig. proceeding) (noting that “the sentencer’s discretion

to impose any punishment within the prescribed range is essentially unfettered”); see

Foster v. State, 525 S.W.3d 898, 912 (Tex. App.—Dallas 2017, pet. ref’d).




                                             2
                                       II. DISCUSSION

       Appellant argues that the sentence imposed was disproportionate to the

seriousness of the crime because “[n]o evidence was presented that [he] was violent,

would be likely to re-offend, or that it was in the best interests of the State for [him] to be

incarcerated.” Appellant further argues that “[e]veryone in the Court was aware that this

was not a serious offense,” noting that at one point the prosecutor informed the trial court

that the victim “wasn’t very interested in the case anymore.”

       For an issue to be preserved on appeal, there must be a timely objection that

specifically states the legal basis for the objection. TEX. R. APP. P. 33.1(a); see Layton v.

State, 280 S.W.3d 235, 238–39 (Tex. Crim. App. 2009). When an imposed sentence is

within the punishment range and not illegal, the failure to specifically object in open court

or in a post-trial motion waives any error on appeal. See Rhoades v. State, 934 S.W.2d

113, 120 (Tex. Crim. App. 1996); Noland v. State, 264 S.W.3d 144, 151 (Tex. App.—

Houston [1st Dist.] 2007, pet. ref’d); Trevino v. State, 174 S.W.3d 925, 927–28 (Tex.

App.—Corpus Christi–Edinburg 2005, pet. ref’d).

       In this case, appellant’s sentence of six years’ imprisonment falls squarely within

the range of punishment authorized for a third-degree felony under the penal code. See

TEX. PENAL CODE ANN. § 12.34(a) (providing that a third-degree felony is punishable by

imprisonment for a term of not more than ten years or less than two years). Further,

appellant did not object to the sentence imposed by the trial court on any grounds, nor

did he challenge the sentence with a post-trial motion. Accordingly, he has waived

appellate review of this issue. See TEX. R. APP. P. 33.1(a); Rhoades, 934 S.W.2d at 120;

Noland, 264 S.W.3d at 151; Trevino, 174 S.W.3d at 927–28.

       Acknowledging that courts typically find waiver in this situation, appellant


                                              3
nevertheless argues that “recent analysis of the Eighth Amendment, specifically the

prohibition against cruel and unusual punishment, has led constitutional scholars to the

proposition that the prohibition against cruel and unusual punishment cannot be waived

by an individual.” However, the only “recent analysis” to that effect cited by appellant is

a law review article dating back to 2000. Appellant further contends that “[t]he proposition

that a person can choose to be treated cruelly and unusually by the State is so counter

to the interests that the Eighth Amendment purports to protect that a waiver is legally and

morally impossible.” But the rule that a constitutional challenge to an allegedly cruel and

unusual punishment is waived if not preserved in the trial court is settled law which we

may not revisit. See Rhoades, 934 S.W.2d at 120 (finding appellant forfeited issue that

punishment was cruel and unusual in violation of the Texas Constitution because he failed

to make that complaint at trial); Villareal v. State, 504 S.W.3d 494, 509 (Tex. App.—

Corpus Christi–Edinburg 2016, pet. ref’d) (“[A]s an intermediate appellate court, we must

follow the binding precedent of the court of criminal appeals.”).

       We overrule appellant’s sole issue.

                                     III. CONCLUSION

       The trial court’s judgment is affirmed.

                                                               DORI CONTRERAS
                                                               Chief Justice

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

Delivered and filed the
15th day of August, 2019.




                                             4
