                        NUMBERS 13-15-00036-CR

                            COURT OF APPEALS

                   THIRTEENTH DISTRICT OF TEXAS

                     CORPUS CHRISTI - EDINBURG


HESIQUIO CANTU,                                                           Appellant,

                                          v.

THE STATE OF TEXAS,                                                       Appellee.


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


                         MEMORANDUM OPINION

            Before Justices Rodriguez, Benavides and Perkes
                Memorandum Opinion by Justice Perkes
      Pursuant to a plea agreement, appellant Hesiquio Cantu pleaded guilty to

aggravated assault with a deadly weapon, a second-degree felony. See TEX. PENAL

CODE ANN. § 22.02(a)(2) (West, Westlaw through 2015 R.S.). The trial court deferred a

finding of guilt and placed appellant on deferred adjudication community supervision for

a period of seven years. The State subsequently filed a motion to revoke appellant’s
community supervision, alleging multiple violations of the terms and conditions of his

community supervision, including a new allegation of assault. Following an evidentiary

hearing, the trial court found the allegations to be true, found appellant guilty of

aggravated assault with a deadly weapon, revoked his community supervision, and

sentenced him to ten years’ imprisonment in the Texas Department of Criminal Justice—

Institutional Division.    By a single issue, appellant contends the sentence imposed

violated his Eighth and Fourteenth Amendment rights. We affirm.

                                      I. BACKGROUND

       In 2009, the State filed a motion to revoke appellant’s community supervision,

alleging that he committed an assault, which was dismissed. In 2011, the State filed a

second motion to revoke appellant’s community supervision, alleging that he drove with

an invalid license with a previous conviction and failed to complete the required

community service hours. The trial court continued appellant’s community supervision,

but with additional conditions. In December 2013, the State filed a third motion to revoke

appellant’s community supervision, alleging that he committed an aggravated assault,

consumed alcohol, failed to report as ordered, failed to remain in Nueces County as

ordered, and failed to pay fines and costs.

       Following a hearing on the third motion, the trial court found all of the alleged

violations to be “true.”     During the punishment stage, complainant Helen Pacheco

testified that appellant punched her twice in the face one evening, told her he was going

to kill her, held her down, and choked her.       He also bit her under the eye, which

necessitated sutures. The trial court found appellant guilty of aggravated assault with a


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deadly weapon and sentenced appellant to ten years’ imprisonment. See § 22.02(a)(2).

This appeal followed.

                                          II. SENTENCING

       Appellant claims that the sentence is disproportionate to the seriousness of the

offense in violation of the Eighth and Fourteenth Amendments to the United States

Constitution.1 See U.S. CONST. amends. VIII, XIV. Specifically, appellant argues that

his sentence “makes no measurable contribution to acceptable goals of punishment.”

He asserts that although he did not object to the imposed sentence, a waiver of Eighth

Amendment protection is “legally and morally impossible.”                In response, the State

contends that appellant’s argument is unpreserved.

A. Standard of Review

       In reviewing a claim of cruel and unusual punishment for a prison sentence that

allegedly violates the Eighth Amendment, the reviewing court must determine whether

the term of years is “grossly disproportionate” for the particular crime. State v. Simpson,

No. PD-0599-15, __S.W.3d__, __, 2016 WL 1697662, at *4 (Tex. Crim. App., Apr. 27,

2016) (quoting Ewing v. California, 538 U.S. 11, 23 (2003) (plurality op.)). Additionally,

“a court must judge the severity of the sentence in light of the harm caused or threatened

to the victim, the culpability of the offender, and the offender’s prior adjudicated and

unadjudicated offenses.” Id. (citing Graham v. Florida, 560 U.S. 48, 60 (2010)).

B. Preservation


        1 The Eighth Amendment applies to punishments imposed by state courts through the due process

clause of the Fourteenth Amendment. See Baze v. Rees, 553 U.S. 35, 47 (2008); Robinson v. California,
370 U.S. 660, 666 (1962).

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       Preservation of error is a systemic requirement that a first-level appellate court

should ordinarily review on its own motion. See Archie v. State, 221 S.W.3d 695, 698

(Tex. Crim. App. 2007) (citing Jones v. State, 942 S.W.2d 1, 2 n. 1 (Tex. Crim. App.

1997)). To preserve error, appellant 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);

see Griggs v. State, 213 S.W.3d 923, 927 (Tex. Crim. App. 2007). When ruling on

constitutional issues and preservation, almost every right, constitutional or statutory, may

be waived by the failure to object. Broxton v. State, 909 S.W.2d 912, 918 (Tex. Crim.

App. 1995) (en banc); Kim v. State, 283 S.W.3d 473, 475 (Tex. App.—Fort Worth 2009,

pet. ref’d).

C. Analysis

       The State argues that, since appellant did not object to his sentence at the hearing

and did not file a motion for new trial asserting any constitutional or statutory complaints

concerning his sentence, appellant did not preserve this issue for review. We agree.

       Eighth Amendment claims can be waived by the failure to object. See Marin v.

State, 851 S.W.2d 275, 279-80 (Tex. Crim. App. 1993), overruled on other grounds by,

Cain v. State, 947 S.W.2d 262 (Tex. Crim. App. 1997); but see Ex parte Maxwell, 424

S.W.3d 66, 75 (Tex. Crim. App. 2014) (citing Miller v. Alabama, 132 S.Ct. 2455, 2469

(2012) (holding that a mandatory “life without parole” sentence for a juvenile defendant

violated the Eighth Amendment). This Court has consistently upheld this principle. See

Trevino v. State, 174 S.W.3d 925, 927–29 (Tex. App.—Corpus Christi 2005, pet. ref’d)

(holding that failure to object to the sentence as cruel and unusual forfeits error); Quintana


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v. State, 777 S.W.2d 474, 479 (Tex. App.—Corpus Christi 1989, pet. ref’d) (same).2 We

conclude that by failing to object, appellant has failed to preserve his issue for review on

appeal. See TEX. R. APP. P. 33.1. We further note that the 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. See Blue v. State, 41 S.W.3d 129, 131 (Tex. Crim.

App. 2000) (en banc).

        However, even if appellant had preserved this issue, he failed to show how this

sentence, which was within the legislatively-prescribed punishment range, was grossly

disproportionate to the crime for which he was convicted. See TEX. PENAL CODE ANN. §

12.33(a),(b) (West, Westlaw through 2015 R.S.). The Texas Court of Criminal Appeals

has observed that the Eighth Amendment “forbids only extreme sentences that are

‘grossly disproportionate’ to the crime.” Simpson, 2016 WL 1697662, at *4 (quoting

Ewing, 538 U.S. at 23. Moreover, “a sentence is grossly disproportionate to the crime

only in the exceedingly rare or extreme case.” Id. at *4 (quoting Lockyer v. Andrade, 538

U.S. 63, 73 (2003)). The Texas Court of Criminal Appeals added that:

        Only twice has the [United States] Supreme Court held that a non-capital
        sentence imposed on an adult was constitutionally disproportionate.
        United States v. Farley, 607 F.3d 1294 (11th Cir. 2010) (singling out Weems
        v. United States, 217 U.S. 349 (1910) (fifteen years punishment in a prison
        camp grossly disproportionate to crime of falsifying a public record) and
        Solem v. Helm, 463 U.S. 277 (1983) (life imprisonment without parole for
        grossly disproportionate sentence for crime of uttering a no-account check
        for $100)).

        2 See also Coronado v. State, No. 13-15-00073-CR, 2016 WL 462700, at *3 (Tex. App.—Corpus
Christi Feb. 4, 2016, no pet.) (mem. op., not designated for publication) (same); Mireles v. State, No. 13-
14-00636-CR, 2015 WL 9487140, at *3 (Tex. App.—Corpus Christi Dec. 29, 2015, pet. ref’d) (same);
Houston v. State, Nos. 13-14-00677-CR, 13-14-00678-CR, 13-14-00679-CR, 2015 WL 5136179, at *4
(Tex. App.—Corpus Christi Aug. 31, 2015, no pet.) (mem. op., not designated for publication) (same);
Gonzalez v. State, No. 13-14-00308-CR, 2015 WL 4140667, at *2 (Tex. App.—Corpus Christi July 9,
2015, pet. ref’d) (mem. op., not designated for publication) (same).
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Id. at *4.

        In the present case, appellant was convicted of aggravated assault, which is a

second-degree felony, punishable by imprisonment between two and twenty years. See

TEX. PENAL CODE ANN. § 12.33(a) (West, Westlaw through 2015 R.S.). The Texas Court

of Criminal Appeals endorses the act of sentencing within statutory limits as “essentially

unfettered.” Ex parte Chavez, 213 S.W.3d 320, 323 (quoting Miller-El v. State, 782

S.W.2d 892, 895, 897 (Tex. Crim. App. 1990) (en banc)).             Since appellant was

sentenced to ten years’ imprisonment, his sentence was within the legislatively prescribed

range. See TEX. PENAL CODE ANN. § 12.33(a). Accordingly, we overrule appellant’s

sole issue.

                                      III. CONCLUSION

        We affirm the trial court’s judgment.


                                                    GREGORY T. PERKES
                                                     Justice

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

Delivered and filed the
16th day of June, 2016.




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