                               Fourth Court of Appeals
                                      San Antonio, Texas
                                  MEMORANDUM OPINION
                                          No. 04-12-00242-CR

                                          Donte HOUSTON,
                                              Appellant

                                                    v.

                                         The STATE of Texas,
                                               Appellee

                         From the 349th District Court, Houston County, Texas
                                      Trial Court No. 11CR-033
                           The Honorable Mark A. Calhoon, Judge Presiding

Opinion by:       Patricia O. Alvarez, Justice

Sitting:          Catherine Stone, Chief Justice
                  Sandee Bryan Marion, Justice
                  Patricia O. Alvarez, Justice

Delivered and Filed: February 6, 2013

AFFIRMED

           Appellant Donte Houston was indicted for the offense of assault on a public servant. The

jury convicted him of the third degree felony of assault on a public servant and assessed

punishment at seven years’ imprisonment with no fine. See TEX. PENAL CODE ANN. § 22.01

(West 2011).

           In his sole point of error, Houston contends his sentence is grossly disproportionate to the

convicted offense, thereby violating his Eighth Amendment right to freedom from cruel and

unusual punishment, as well as his corresponding right under the Texas Constitution. See U.S.
                                                                                       04-12-00242-CR


CONST. amend. VIII; TEX. CONST. art. I, § 13. The State responds that Houston waived this

point of error when he failed to object to the length of his sentence during the sentencing hearing.

The State also argues that even if Houston properly preserved his point of error for appeal, his

sentence was not grossly disproportionate considering his criminal history and parole eligibility.

                                CRUEL AND UNUSUAL PUNISHMENT

A. Preservation of Error

       “To preserve error for appellate review, a party must present a timely objection to the

trial court, state the specific grounds for the objection and obtain a ruling.” Smith v. State, 256

S.W.3d 341, 343 (Tex. App.—San Antonio 2007, no pet.); see TEX. R. APP. P. 33.1(a). “The

failure to specifically object to an alleged disproportionate sentence in the trial court or in a post-

trial motion waives any error.” Jacoby v. State, 227 S.W.3d 128, 130 (Tex. App.—Houston [1st

Dist.] 2006, pet. ref’d); accord Smith, 256 S.W.3d at 343. At the time of trial, Houston did not

object to the allegedly disproportionate sentence, nor did he file any post-trial motions or

objections. Therefore, Houston failed to preserve this issue for appeal. See Jacoby, 227 S.W.3d

at 130; TEX. R. APP. P. 33.1(a).

B. Grossly Disproportionate Sentence

       Even assuming Houston properly preserved his complaint, we conclude that his sentence

does not amount to cruel and unusual punishment under the United States Constitution or the

Texas Constitution. Generally, sentences falling within the statutory limits are not considered

excessive. Smith, 256 S.W.3d at 343–44; see Jordan v. State, 495 S.W.2d 949, 952 (Tex. Crim.

App. 1973) (holding that a sentence falling within the range prescribed by the legislature was not

excessive or cruel and unusual); Darden v. State, 430 S.W.2d 494, 496 (Tex. Crim. App. 1968)

(“If the punishment is within that prescribed by the statute, it is beyond the province of this Court

to pass upon the question of excessive punishment.”). Here, Houston’s seven year sentence for
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assault on a public servant, a third degree felony, was within the two to ten year range allowed

by section 12.34(a) of the Texas Penal Code. See TEX. PENAL CODE ANN. § 12.34.

           A narrow exception to this general rule exists when the sentence is grossly

disproportionate to the offense. See Ex parte Chavez, 213 S.W.3d 320, 323 (Tex. Crim. App.

2006); Smith, 256 S.W.3d at 343–34.                      “Only if we infer that the sentence is grossly

disproportionate to the offense will we then consider the remaining factors of the Solem test

. . . .” McGruder v. Puckett, 954 F.2d 313, 316 (5th Cir. 1992); see Smith, 256 S.W.3d at 344.

The United States Supreme Court has set forth three objective factors that guide appellate review

in Eighth Amendment cases: (i) “the gravity of the offense and the harshness of the penalty”; (ii)

“the sentences imposed on other criminals in the same jurisdiction”; and (iii) “the sentences

imposed for commission of the same crime in other jurisdictions.” Solem, 463 U.S. at 292. Our

threshold consideration is the gravity of Houston’s offense compared with the severity of his

sentence. See McGruder, 954 F.2d at 316; Smith, 256 S.W.3d at 344.

           In this case, Houston pled not guilty to the third degree felony offense of assault on a

public servant. 1 The jury convicted Houston after hearing his testimony that he struck a sergeant

jailer in the head. See TEX. PENAL CODE ANN. § 22.01. Houston asked to have his punishment

assessed by the jury. Among the evidence before the jury during the punishment phase was

Houston’s prior felony conviction for possession of a controlled substance and a previous

burglary conviction. Houston testified that he received probation for each offense, and that his

probation was subsequently revoked for both offenses.                         The jury also heard evidence of

Houston’s numerous write-ups for at least ten to fifteen other incidents occurring during his

detention in the county jail, including disobeying jailer orders, yelling and cursing at other jail



1
    During the jury trial, Houston decided to release his attorney and represent himself.

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employees, and beating his food tray on windows and bunks. The jury sentenced Houston to

seven years’ imprisonment with no fine.

       Comparing the gravity of Houston’s offense to the severity of the sentence assessed, we

conclude Houston’s sentence is not grossly disproportionate to the offense. See McGruder, 954

F.2d at 316; Smith, 256 S.W.3d at 344. Therefore, we need not address the remaining Solem

factors. See McGruder, 954 F.2d at 316; Smith, 256 S.W.3d at 344. Accordingly, we affirm the

trial court’s judgment.


                                              Patricia O. Alvarez, Justice

DO NOT PUBLISH




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