                                      In The
                                 Court of Appeals
                        Seventh District of Texas at Amarillo

                                        No. 07-14-00119-CR


                                  JOSE GARCIA, APPELLANT

                                                 V.

                              THE STATE OF TEXAS, APPELLEE

                            On Appeal from the 137th District Court
                                    Lubbock County, Texas
          Trial Court No. 2012-434,958, Honorable John J. "Trey" McClendon, Presiding

                                       November 7, 2014

                                MEMORANDUM OPINION
                     Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.


      Appellant Jose Garcia waived a jury trial and entered an open plea of guilty to

one count of aggravated sexual assault of a child.1 After a punishment hearing, the trial

court assessed punishment at a term of forty years of imprisonment. Appellant presents

two appellate issues, one challenging his punishment as cruel and unusual, the second

challenging the admission of rebuttal evidence. We will affirm.




      1
          TEX. PENAL CODE ANN. § 22.021(a)(2)(B) (West 2013).
                                      Background


      In May 2012, appellant was charged by an indictment alleging one count of

aggravated sexual assault of a child under the age of 14 and two counts of indecency

with a child. The offenses were alleged to have occurred on or about January 1, 2002,

against a child whose mother was married to appellant at that time.


      In June 2013, appellant entered an open plea of guilty to the aggravated sexual

assault count. The two remaining counts were dismissed. Concerning punishment, the

State presented the testimony of police officers, the complainant’s mother, the

complainant, and the nurse who examined the complainant.


      Testimony showed appellant and the child’s mother divorced in 2007. In 2011,

the complainant, then fourteen, told one of her friends and eventually her mother of

appellant’s sexual assaults on her when she was about five or six years old.        Her

mother called police.   Appellant initially denied the allegations but later admitted to

police one instance in which the complainant complied when he asked her to “touch and

kiss his penis.” In her testimony, the complainant described four specific instances of

sexual assault but said appellant assaulted her on other occasions.


      Appellant did not testify but presented the testimony of four witnesses who

emphasized his good character and good work habits. The court also reviewed a pre-

sentence investigation report.


      In rebuttal, the State called Dr. Beth Shapiro, a licensed marriage and family

therapist, to rebut appellant’s evidence he was a good candidate for deferred


                                           2
adjudication. Shapiro’s sex-offender assessment of appellant was included in the pre-

sentence investigation report. Shapiro testified she found appellant to be “relatively

emotionally stable, except for some situational anxiety or stress regarding the current

situation.” She opined, “[h]e is definitely in need of sex offender treatment and probably

could profit from doing so.”


       At the time of appellant’s offense, the range of punishment was five to ninety-

nine years of imprisonment, and deferred adjudication community supervision was

permitted. The court assessed punishment at forty years of imprisonment. Appellant’s

motion for new trial was overruled by operation of law. This appeal followed.


                                         Analysis


Cruel and Unusual Punishment


       In his first issue, appellant contends the trial court’s sentence of forty years of

imprisonment constitutes cruel and unusual punishment. He points to the mitigating

evidence presented at trial, including the assessment of a low re-offending risk, the

years that elapsed between the offense and trial, appellant’s record showing no prior

felony convictions and the range permitting deferred adjudication.


       The State notes as an initial matter appellant failed to preserve this issue for our

review. We agree. To preserve for appellate review a complaint that a sentence is

grossly disproportionate, constituting cruel and unusual punishment, a defendant must

present to the trial court a timely request, objection, or motion stating the specific

grounds for the ruling desired. See TEX. R. APP. P. 33.1(a); Rhoades v. State, 934


                                             3
S.W.2d 113, 120 (Tex. Crim. App. 1996) (en banc). Here, appellant failed to object on

any grounds to the sentence in the trial court. See Curry v. State, 910 S.W.2d 490, 497

(Tex. Crim. App. 1995) (en banc) (holding defendant failed to preserve cruel and

unusual punishment claim when he urged no objection in trial court); Ham v. State, 355

S.W.3d 819, 825 (Tex. App.—Amarillo 2011, pet. ref'd) (same). See also Speckman v.

State, Nos. 07-13-00232-CR, 07-13-00233-CR, 2014 Tex. App. LEXIS 5615 (Tex.

App—Amarillo May 23, 2014, no pet.) (mem. op., not designated for publication) (similar

finding).


       Moreover, even had it been preserved, we could not find the contention

meritorious. Aggravated sexual assault of a child under the age of 14 was in 2002, and

presently is, a felony offense of the first degree. See TEX. PENAL CODE ANN. § 22.021(e)

(West 2013). The offense is punishable by imprisonment for life or for any term of not

more than ninety-nine years or less than five years and a fine not to exceed $10,000.

TEX. PENAL CODE ANN. § 12.32 (West 2011). We recognize also that in 2002, the law

permitted the trial court, in its discretion, to defer a finding of guilt of this offense and

place the defendant on deferred adjudication community supervision. See TEX. CODE

CRIM. PROC. ANN. art. 42.12, § 5(a) (West 2001), Acts 77th Leg. Sess., chs. 211, 786,

969, 992, 1159, 1351, 1420. See current version at TEX. CODE CRIM. PROC. ANN. art.

42.12, § 5(a) (West 2013).       But the sentence imposed here was well within the

applicable range of punishment for a first-degree felony offense, and Texas courts have

traditionally held that, so long as the punishment imposed lies within the range

prescribed by the Legislature in a valid statute, that punishment is not excessive, cruel,

or unusual. See, e.g., Darden v. State, 430 S.W.2d 494, 496 (Tex. Crim. App. 1968);


                                             4
see also Jackson v. State, 680 S.W.2d 809, 814 (Tex. Crim. App. 1984); Rodriguez v.

State, 917 S.W.2d 90, 92 (Tex. App.— Amarillo 1996, pet. ref'd).


      Nonetheless, a prohibition against grossly disproportionate punishment survives

under the Eighth Amendment to the United States Constitution, separate and apart from

any consideration of whether the punishment imposed lies within the legislatively

prescribed range of punishment. See U.S. CONST. AMEND. VIII; Solem v. Helm, 463 U.S.

277, 290, 103 S. Ct. 3001, 77 L. Ed. 2d 637 (1983); Harmelin v. Michigan, 501 U.S.

957, 985, 989-90, 111 S. Ct. 2680, 115 L. Ed. 2d 836 (1991) (plurality op.); Lackey v.

State, 881 S.W.2d 418, 420-21 (Tex. App.—Dallas 1994, pet. ref'd). Assessing such a

claim, we make an initial, threshold comparison of the gravity of the offense with the

severity of the sentence. See Harmelin, 501 U.S. at 1004-05 (Kennedy, J., concurring);

McGruder v. Puckett, 954 F.2d 313, 316 (5th Cir. 1992). Then, and only if our initial

comparison creates an inference that the sentence was grossly disproportionate to the

offense, do we consider the other two Solem factors: (1) sentences for similar crimes in

the same jurisdiction and (2) sentences for the same crime in other jurisdictions. See

McGruder, 954 F.2d at 316; Lackey, 881 S.W.2d at 420-21. See also Jones v. State,

No. 07-13-00430-CR, 2014 Tex. App. LEXIS 5694 (Tex. App.—Amarillo May 28, 2014,

no pet.) (mem. op., not designated for publication) (noting same).


      Appellant points to nothing in the record here, and we find nothing, that would

raise the inference that the forty-year sentence imposed was a grossly disproportionate

punishment for the first-degree felony offense of aggravated sexual assault of a child.

Finding no inference of gross disproportionality, we do not reach the considerations



                                            5
regarding sentences for similar crimes in the same jurisdiction and in other jurisdictions.

See McGruder, 954 F.2d at 316.


        We overrule appellant’s first issue.


Rebuttal Testimony


        In appellant’s second issue, he contends the trial court erred in allowing the State

to present the rebuttal testimony of Dr. Shapiro because her testimony violated Rule of

Evidence 403, in that it was substantially more prejudicial than probative. In support of

his argument, appellant notes he objected at trial to Shapiro’s testimony because the

State indicated even before appellant’s case-in-chief on punishment was presented that

it intended to call the therapist as a rebuttal witness.                  He also objected that her

testimony was outside the scope of his case-in-chief. Counsel asserted, “Your Honor,

none of that information was gone into in my case in chief. The purpose of rebuttal is to

rebut what evidence that I bring in, therefore, this is improper.”


        The State argues appellant’s contention on appeal that Shapiro’s testimony was

inadmissible under rule 4032 was not preserved for our review. We must agree.


        The error alleged on appeal must comport with the objection submitted to the trial

court. See TEX. R. APP. P. 33.1; Heidelberg v. State, 144 S.W.3d 535, 537 (Tex. Crim.

App. 2004) ("the legal basis of a complaint raised on appeal cannot vary from that

raised at trial"). To preserve error for appellate review on a contention that evidence



        2
          Rule 403 provides: “Although relevant, evidence may be excluded if its probative value is
substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury,
or by considerations of undue delay, or needless presentation of cumulative evidence.” TEX. R. EVID. 403.

                                                     6
was inadmissible under rule 403, a separate objection in the trial court is necessary.

Nelson v. State, 864 S.W.2d 496, 499 (Tex. Crim. App. 1993).


         After reviewing the record, we agree with the State that while appellant objected

to Shapiro’s testimony on two grounds, and made additional objections during her

testimony, none of them were on the basis that her testimony was substantially more

prejudicial than probative. Because appellant’s complaint on appeal does not comport

with any of the objections made at trial, it presents nothing for our review. His second

issue is overruled.


                                        Conclusion


         Having overruled each of appellant’s issues, we affirm the judgment of the trial

court.


                                                 James T. Campbell
                                                     Justice




Do not publish.




                                             7
