                         NUMBER 13-18-00561-CR

                         COURT OF APPEALS

                THIRTEENTH DISTRICT OF TEXAS

                  CORPUS CHRISTI – EDINBURG

MIGUEL BENAVIDEZ,                                                    Appellant,

                                       v.

THE STATE OF TEXAS,                                                  Appellee.


                 On appeal from the 148th District Court
                       of Nueces County, Texas.



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

      Appellant Miguel Benavidez appeals from a judgment revoking his community

supervision. Appellant argues that the punishment assessed by the trial court was
disproportionate and in violation of his rights under the Eighth and Fourteenth

Amendments to the United States Constitution. 1 We affirm.

                                        I.      BACKGROUND

        In May of 2011, appellant was charged by indictment with six counts of aggravated

sexual assault of a child, a first-degree felony, and three counts of indecency with a child,

a second-degree felony. See TEX. PENAL CODE ANN. §§ 22.021(e), 21.11(a). In April of

2012, a jury found appellant guilty of three counts of aggravated sexual assault of a child.

See TEX. PENAL CODE ANN. § 22.021(e). The jury assessed punishment at ten years’

confinement on each count to run concurrently, with a recommendation that the

punishment be suspended and that appellant be placed on community supervision. The

trial court suspended appellant’s sentence and placed him on community supervision for

a period of ten years.

        In May 2018, the State moved to revoke appellant’s community supervision for

eleven violations of the conditions of his community supervision which included: several

monetary non-payments, failure to observe curfew, failure to avoid the use of alcoholic

beverages, and entering a premise where minor children were present. On August 9,

2018, appellant pleaded true to all of the allegations in the State’s motion to revoke. The

trial court revoked appellant’s community supervision and sentenced him to imprisonment




        1 Appellant’s brief argues that the “sentence of 25 years on Count 1 and a 15 year sentence on
Count 2 exposed the Appellant to an unreasonable, unusual, and unconstitutional punishment . . . .”
However, the record is clear that the sentence for appellant was ten years for three counts of aggravated
sexual assault of a child. See TEX. PENAL CODE ANN. § 22.021(e). Additionally, within his appellate brief,
appellant’s counsel inadvertently refers to appellant as “Fernando Herrera” and uses incorrect cause
numbers in reference to appellant’s conviction. This Court construes appellant’s sole issue as contending
that the punishment he received was disproportionate and in violation of his rights under the Eighth and
Fourteenth Amendments of the United States Constitution, and we discuss it as such herein.

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in the Texas Department of Criminal Justice—Institutional Division for ten years. This

appeal followed.

                                     II.    DISCUSSION

       By his sole issue, appellant argues that the punishment assessed by the trial court

was disproportionate to the seriousness of his offenses under the Eighth and Fourteenth

Amendments.

A.     Standard of Review and Applicable Law

       We review a trial court’s sentencing under an abuse of discretion standard.

Jackson v. State, 680 S.W.2d 809, 814 (Tex. Crim. App. 1984). A trial judge is given wide

latitude to determine the appropriate sentence in a given case. Tapia v. State, 462

S.W.3d 29, 46 (Tex. Crim. App. 2015). A higher court will not step into the shoes of the

trial court and substitute its judgment for the trial court unless the trial court has clearly

abused its discretion. Id. As a general rule, the trial court’s reasonable judgment is

unassailable on appeal if the punishment falls within the legislatively prescribed range.

See Ex parte Chavez, 213 S.W.3d 320, 323–24 (Tex. Crim. App. 2006); Benavides v.

State, 741 S.W.2d 576, 577 (Tex. App.—Corpus Christi–Edinburg 1987, pet. ref’d)

(explaining that as long as the sentence is assessed within the legislatively determined

range, it will not be disturbed on appeal). A trial court abuses its discretion if it acts

arbitrarily, capriciously, and without reference to any guiding rules or principles. Lam v.

State, 25 S.W.3d 233, 237 (Tex. App.—San Antonio 2000, no pet.).

       The Eighth Amendment to 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. The Eighth Amendment



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

the Fourteenth Amendment. See U.S. CONST. amend. XIV. However, outside of the

context of capital punishment, successful challenges to proportionality of particular

sentences are exceedingly rare. See Ewing v. California, 538 U.S. 11, 21 (2003) (plurality

op.); see 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).

B.     Analysis

       An individual’s sentence may constitute cruel and unusual punishment, despite

falling within the statutory range, if it is grossly disproportionate to the offense. See id. at

287. In Solem, the United States Supreme Court established three factors for evaluating

a sentence’s proportionality: (1) the gravity of the offense relative to the harshness of the

penalty; (2) the sentences imposed for other crimes in the jurisdiction; and (3) the

sentences imposed for the same crime in other jurisdictions. See id. at 292.

       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); Layton v.

State, 280 S.W.3d 235, 238–39 (Tex. Crim. App. 2009). Additionally, when the sentence

imposed 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 Noland v. State, 264

S.W.3d 144, 151 (Tex. App.—Houston [1st Dist.] 2007, pet. ref’d); Trevino v. State, 174



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S.W.3d 925, 927–29 (Tex. App.—Corpus Christi–Edinburg 2005, pet. ref’d) (concluding

that failure to object to the sentence as cruel and unusual forfeits error). Here, appellant

did not object to the sentence imposed by the trial court at the hearing and did not assert

any constitutional complaints concerning his sentence in any post-trial motion. Thus,

appellant has forfeited his complaint on appeal, and we conclude this issue has been

waived. See TEX. R. APP. P. 33.1(a).

                                    III.   CONCLUSION

       We affirm the trial court’s judgment.

                                                               NORA L. LONGORIA
                                                               Justice

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

Delivered and filed the
13th day of June, 2019.




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