                           NUMBER 13-08-00504-CR

                            COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                    CORPUS CHRISTI - EDINBURG


RAMIRO GONZALEZ,                                                           Appellant,

                                           v.

THE STATE OF TEXAS,                                                        Appellee.


                   On appeal from the 105th District Court
                         of Kleberg County, Texas.


                         MEMORANDUM OPINION

                Before Justices Rodriguez, Garza, and Vela
                Memorandum Opinion by Justice Rodriguez

      Appellant, Ramiro Gonzalez, challenges his sentence of twenty years' imprisonment

for the offense of aggravated sexual assault of a child, a first-degree felony. See TEX .

PENAL CODE ANN . § 22.021(a)(1)(B)(i), (e) (Vernon Supp. 2008). By his sole issue,
Gonzalez contends that the punishment assessed violated his federal constitutional rights.

See U.S. CONST . VIII, XIV. We affirm.

                                     I. BACKGROUND

       Gonzalez was charged by indictment with five counts of aggravated sexual assault

of a child. See TEX . PENAL CODE ANN . § 22.021. Pursuant to an agreement with the State,

Gonzalez pleaded guilty to one count, and the State dismissed the remaining counts. After

accepting Gonzalez's plea of guilty, the trial court deferred adjudication of guilt, placed

Gonzalez on community supervision for a period of ten years, and imposed a fine of

$2,500.

       The State subsequently filed a motion to revoke Gonzalez's community supervision.

In its motion, the State alleged that Gonzalez violated fifteen terms of his community

supervision. At the hearing on the motion, Gonzalez pleaded "true" to all of the State's

allegations. The State recommended a sentence of six years' imprisonment. However,

after adjudicating Gonzalez's guilt as to one count of aggravated sexual assault of a child,

the trial court revoked his community supervision and sentenced him to twenty years'

confinement.

                                      II. DISCUSSION

       By his sole issue, Gonzalez argues that the sentence imposed by the trial court was

in violation of the Eighth Amendment to the United States Constitution. See U.S. CONST .

amend. VIII. Specifically, Gonzalez argues that the sentence is cruel, unusual, and grossly

disproportionate to his crime. The Eighth Amendment provides that "[e]xcessive bail shall

not be required, nor excessive fine imposed, nor cruel and unusual punishment inflicted."

Id.

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       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. TEX . R. APP. P.

33.1(a). The failure to specifically object to an alleged disproportionate or cruel and

unusual sentence in the trial court or in a post-trial motion waives any error for our review.

Noland v. State, 264 S.W.3d 144, 151 (Tex. App.–Houston [1st Dist.] 2007, pet. ref'd) ("[I]n

order 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."); Trevino v. State, 174 S.W.3d 925, 928 (Tex. App.–Corpus Christi 2005,

pet. ref'd) (providing that "by failing to object to the trial court's sentence below, [the

appellant] forfeited his complaint" the sentence was cruel and unusual and because the

proportionality issue was not preserved, we need not consider its application); Solis v.

State, 945 S.W.2d 300, 301 (Tex. App.–Houston [1st Dist.] 1997, pet. ref'd) (overruling

appellant's complaint that the sentence was grossly disproportionate because appellant

did not object to the sentence assessed by the trial court).

       Gonzalez complains for the first time on appeal that his Eighth Amendment rights

have been violated because the sentence is grossly disproportionate to the offense

committed and the sentence is cruel and unusual.            Therefore, his argument is not

preserved for our review. See TEX . R. APP. P. 33.1(a); Noland, 264 S.W.3d at 151;

Trevino, 174 S.W.3d at 928; Solis, 945 S.W.2d at 301.

       Nonetheless, Gonzalez asks this Court to apply the three-part test articulated in

Solem v. Helm to his sentence and conclude that his sentence is grossly disproportionate

to his crime. 463 U.S. 277, 292 (1983). However, this Court has noted that "the viability

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and mode of application of [the Solem] proportionate analysis . . . has been questioned

since the Supreme Court's decision in Harmelin v. Michigan, 501 U.S. 957 (1991)."

Trevino, 174 S.W.3d at 928 (citing McGruder v. Puckett, 954 F.2d 313, 315-16 (5th Cir.

1992)). In Sullivan v. State, this Court applied both the Solem and McGruder tests to

determine whether the appellant's sentence was grossly disproportionate to the offense

he committed. 975 S.W.2d 755, 757-58 (Tex. App.—Corpus Christi, 1998, no pet.); see

also Solem, 463 U.S. at 290; McGruder, 954 F.2d at 316. Therefore, assuming, arguendo,

the viability of a proportionality review, as we did in Sullivan, we will apply both the Solem

and McGruder tests to the facts of this case. See Sullivan, 975 S.W.2d at 757-58. The

Solem court determined that the proportionality of a sentence is evaluated by considering

the following: (1) the gravity of the offense and the harshness of the penalty; (2) the

sentences imposed on other criminals in the same jurisdiction; and (3) the sentences

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

Sullivan, 975 S.W.2d at 757. Under the McGruder test "[o]nly if we infer that the sentence

is grossly disproportionate to the offense will we then consider the remaining factors of the

Solem test and compare the sentence received to (1) sentences for similar crimes in the

same jurisdiction and (2) sentences for the same crime in other jurisdictions." McGruder,

954 F.2d at 315-16.

       Under both tests, we review the gravity of the offense and the harshness of the

penalty first. See Sullivan, 975 S.W.2d at 757; see also Solem, 463 U.S. at 290;

McGruder, 954 F.2d at 316. Gonzalez was found guilty of aggravated sexual assault of

a child, a first-degree felony. See TEX . PENAL CODE ANN . § 22.021(a)(1)(B)(i), (e). The

twenty-year sentence is well below the maximum sentence allowed by law. See id. §



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12.32(a). The maximum punishment range for a first-degree felony is life or for any term

of not more than ninety-nine years or less than five years. Id. Punishment assessed within

the statutory limits is generally not cruel and unusual punishment. Samuel v. State, 477

S.W.2d 611, 614 (Tex. Crim. App. 1972); Swinney v. State, 828 S.W.2d 254, 259 (Tex.

App.–Houston [1st Dist.] 1992, no pet.). In light of the nature of Gonzalez's offense and

the punishment range available, we conclude that Gonzalez's twenty-year sentence is not

grossly disproportionate to his crime. This finding ends our analysis under McGruder. See

McGruder, 954 F.2d at 316; see also Sullivan, 975 S.W.2d at 757. Because there is no

evidence in the appellate record of the sentences imposed for other crimes in Texas or for

the same crime in other jurisdictions, we may not perform a comparative evaluation using

the remaining Solem factors. See Solem, 463 U.S. at 292; see also Sullivan, 975 S.W.2d

at 757-58. Therefore, we conclude that Gonzalez's sentence in this case is neither cruel

and unusual nor grossly disproportionate to the crime committed. We overrule Gonzalez's

sole issue.

                                     III. CONCLUSION

       We affirm the trial court's judgment.



                                                       NELDA V. RODRIGUEZ
                                                       Justice

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

Memorandum Opinion delivered and
filed this 19th day of February, 2009.




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