                          NUMBER 13-18-00176-CR

                             COURT OF APPEALS

                   THIRTEENTH DISTRICT OF TEXAS

                      CORPUS CHRISTI - EDINBURG


LESLIE HOWARD BARNHART,                                                     Appellant,

                                           v.

THE STATE OF TEXAS,                                                         Appellee.


                   On appeal from the 411th District Court
                          of Polk County, Texas.


                          MEMORANDUM OPINION

 Before Chief Justice Valdez and Justices Rodriguez and Benavides
            Memorandum Opinion by Justice Rodriguez

      Appellant Leslie Howard Barnhart appeals from the revocation of his community

supervision. By one issue, Barnhart contends that his confinement in state jail for a term

of twenty months was grossly disproportionate for the offense for which he was convicted.

See U.S. CONST. amend. VIII; TEX. CONST. art. 1, § 13. We affirm.
                                    I.     BACKGROUND

       On March 7, 2017, pursuant to an agreement with the State, Barnhart pleaded

guilty to possession of less than one gram of methamphetamine, a state-jail felony

offense. See TEX. HEALTH & SAFETY CODE ANN. § 481.115(b) (West, Westlaw through

2017 1st C.S.). The range of punishment for a state-jail felony is not more than two years

or less than 180 days and a fine of not more than $10,000. TEX. PENAL CODE ANN. §

12.35(a)–(b) (West, Westlaw through 2017 1st C.S.). The trial court deferred a finding

of guilt and placed Barnhart on community supervision for four years.

       On February 21, 2018, at a hearing on the State’s third amended motion to

adjudicate guilt, the trial court heard testimony, after which the court found Barnhart had

violated conditions of his community supervision, adjudicated him guilty, and sentenced

him to twenty months in the state jail. Barnhart did not object to the sentence imposed

by the trial court and did not file a motion for new trial challenging the constitutionality of

his sentence. This appeal followed.

                    II.     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, nor cruel and unusual punishment inflicted.”

U.S. CONST. amend. VIII; see TEX. CONST. art. 1, § 13. The Eighth Amendment applies

to punishments imposed by state courts through the Due Process Clause of the

Fourteenth Amendment.        U.S. CONST. amend. XIV.        A punishment within the limits

prescribed by a valid statute “is not, per se, prohibited as cruel, unusual, or excessive.”

Trevino v. State, 174 S.W.3d 925, 928 (Tex. App.—Corpus Christi 2005, pet. ref’d). And


                                              2
when a sentence is within the prescribed statutory range set down by the legislature,

sentencing authorities have nearly unfettered discretion to impose any punishment within

that range. Ex parte Chavez, 213 S.W.3d 320, 323 (Tex. Crim. App. 2006).

                                  III.   PRESERVATION

       The right to be free from cruel and unusual punishment and almost every

constitutional or statutory right can be waived by failure to object. See Smith v. State,

721 S.W.2d 844, 855 (Tex. Crim. App. 1986); Noland v. State, 264 S.W.3d 144, 151–52

(Tex. App.—Houston [1st Dist.] 2007, pet. ref’d) (concluding that by failing to object the

appellant did not preserve an argument that the sentence was grossly disproportionate

to offense); Quintana v. State, 777 S.W.2d 474, 479 (Tex. App.—Corpus Christi 1989,

pet. ref’d) (holding that the defendant waived his cruel and unusual punishment argument

by failing to object); see also Maza v. State, No. 13-14-00128-CR, 2015 WL 3637821, at

*2 (Tex. App.—Corpus Christi June 11, 2015, no pet.) (mem. op., not designated for

publication) (disagreeing with appellant’s argument that he should be allowed to make his

eighth amendment violation argument for the first time on appeal because he did not

object in the trial court and thus his argument was not preserved).         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. See TEX.

R. APP. P. 33.1; 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) (en banc));

Noland, 264 S.W.3d at 151–52; see also Trevino, 174 S.W.3d at 927–28 (“Because the

sentence imposed is within the punishment range and is not illegal, we conclude that the


                                             3
rights [appellant] asserts for the first time on appeal are not so fundamental as to have

relieved him of the necessity of a timely, specific trial objection.”).

       Barnhart did not object when the trial court imposed sentence and did not complain

of the sentence in any post-trial motion that the sentence was excessive or violated the

Eighth Amendment. Barnhart failed to preserve this issue for our review. See TEX. R.

APP. P. 33.1; Smith, 721 S.W.2d at 855; Kim, 283 S.W.3d at 475; Noland, 264 S.W.3d at

151–52; Trevino, 174 S.W.3d at 927–28; Quintana, 777 S.W.2d at 479.

                          IV.    CRUEL AND UNUSUAL PUNISHMENT

       Even had Barnhart preserved error, his sentence of twenty months in state jail for

his state-jail felony conviction, although at the top of the punishment range authorized by

statute for the offense, falls within the legal range set down by the state legislature for

that offense. See TEX. HEALTH & SAFETY CODE ANN. § 481.115(b); TEX. PENAL CODE ANN.

§ 12.35(a)–(b).    So his sentence was not prohibited as per se excessive, cruel, or

unusual. See Trevino, 174 S.W.3d at 928; see also Cowan v. State, No. 13-14-00358-

CR, 2015 WL 4381090, *2 (Tex. App.—Corpus Christi July 16, 2015, no pet.) (mem. op.,

not designated for publication). Barnhart acknowledges these propositions.

       Nonetheless, relying on Hammer v. State and Reynolds v. State, Barnhart

challenges the proportionality of his punishment to the gravity of the offense for which he

was convicted. See Hammer v. State, 461 S.W.3d 301, 303–04 (Tex. App.—Fort Worth

2015, no pet.); Reynolds v. State, 430 S.W.3d 467, 471 (Tex. App.—San Antonio 2014,

no pet.). Barnhart’s proportionality argument invokes the multi-factor test under which

we consider: (1) the gravity of the offense compared to the severity of the sentence; (2)


                                               4
the offender’s sentence compared to the sentences received by other offenders in the

same jurisdiction; and (3) the offender’s sentence compared to the sentences imposed

for the same crime in other jurisdictions. Graham v. Florida, 560 U.S. 48, 60 (2010); See

463 U.S. 277, 291–92 (1983); Solem v. Helm, 463 U.S. 277, 291–92 (1983).

       Evaluating the gravity of the offense he committed, we note that there was

testimony at the revocation hearing that Barnhart violated the conditions of community

supervision by testing positive for methamphetamine on numerous occasions and was

found to be in possession of methamphetamine and a syringe on one occasion.

However, even resolving the gravity of the offense factor in Barnhart’s favor, we must still

consider sentences imposed for the same crime in the same jurisdiction and in other

jurisdictions. See Hammer, 461 S.W.3d at 304. And Barnhart affirmatively states that

he is not complaining of disproportionate sentencing with respect to sentences imposed

on other defendants who have committed the same or similar offenses; rather, he only

complains that his sentence is disproportionate for the gravity of the crime he committed.

Moreover, the record does not inform us of sentences imposed in this or other jurisdictions

for such an offense committed by a person with a history similar to Barnhart’s. See id.

We are not persuaded by Barnhart’s argument.

       Nothing in the record shows that the twenty-month state-jail sentence imposed in

this case constitutes a grossly disproportionate sentence or cruel and unusual

punishment in violation of the Eighth Amendment to the Constitution of the United States.

We cannot conclude that the trial court abused its nearly unfettered discretion in imposing

the twenty-month sentence.      See Ex parte Chavez, 213 S.W.3d at 323.          Even had


                                             5
Barnhart preserved this issue, the sentence falls within the punishment range and is

neither prohibited as per se excessive, cruel, or unusual nor disallowed as an abuse of

discretion. See id.; Trevino, 174 S.W.3d at 928. We overrule Barnhart’s sole issue.

                                   V.      CONCLUSION

       We affirm the judgment of the trial court.



                                                            NELDA V. RODRIGUEZ
                                                            Justice

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

Delivered and filed the
29th day of August, 2018.




                                             6
