                                IN THE
                        TENTH COURT OF APPEALS

                               No. 10-09-00172-CR

RONALD LEE SHELBURG,
                                                         Appellant
v.

THE STATE OF TEXAS,
                                                         Appellee


                          From the 13th District Court
                            Navarro County, Texas
                           Trial Court No. 32032-CR


                       MEMORANDUM OPINION


      Appellant plead guilty to the felony offense of assault family violence,

subsequent offense. TEX. PEN. CODE ANN. § 22.01(b)(2) (West Pamp. 2010). After a

sentencing hearing, the trial judge assessed his punishment at 9 years in prison.

Appellant appeals.

      On May 8, 2008, appellant went to his mother-in-law’s home where his wife and

two sons were staying. He entered the home without announcing his presence. He

surprised his wife. Few, if any words were exchanged. In the presence of his sons, he

punched his wife in the mouth and then in the eye. The second blow knocked her to the
ground. Her head hit a cabinet as she fell. As appellant’s brother-in-law came into the

room, appellant hit him also. During the ensuing struggle, appellant’s wife ran across

the street to call the police. Appellant gave chase while screaming profanities at his

wife. She was able to call 9-1-1. Appellant fled before the police arrived. He was

arrested the following day.

        At the punishment hearing, both the victim and appellant testified. The victim

stated that appellant had been verbally and mentally abusive to her on a daily basis,

that he had hit her on two other occasions, and that she was afraid of him and wanted

him to go to prison. The appellant testified that he wanted to support his children and

be given probation.     He also admitted to three prior misdemeanor convictions for

assault – two of which involved domestic abuse. The longest previous sentence he

received was 12 months in jail. At the conclusion of the hearing, appellant’s lawyer

asked the judge to sentence him to probation; the prosecutor asked for 10 years in

prison. Neither the sufficiency of the evidence nor the voluntariness of the guilty plea is

challenged on appeal.

        In appellant’s sole issue on appeal, he argues that the trial court abused its

discretion in sentencing appellant to 9 years in prison. He contends the trial court failed

to consider the “overwhelming circumstances that would make probation in this cause

a just and sensible alternative to prison.” Because the trial judge did not abuse his

discretion, we affirm the judgment.

        Typically, challenges to the proportionality of the length of a sentence to the facts

are raised as a violation of the Eighth Amendment’s ban on “cruel and unusual

Shelburg v. State                                                                      Page 2
punishment.”1 E.g., Harmelin v. Michigan, 501 U. S. 957, 111 S. Ct. 2680, 115 L. Ed 2d 836

(1991). Although such claims are seldom successful, there is an established body of case

law which provides a framework for analyzing such an Eighth Amendment claim. See

Graham v. Florida, _____ U. S. ______, 130 S. Ct. 2011, 176 L. Ed. 2d 825 (2010). See also

Meadoux v. State, 325 S.W.3d 189, 194 (Tex. Crim. App. 2010).

        Appellant has, instead, cast his issue in terms of an “abuse of discretion.” He has

not cited any cases where an appellate court has reviewed the length of an otherwise

lawful sentence and determined that the court abused its discretion by imposing such a

sentence. Indeed, the only case he cites is Jackson v. State, 680 S.W.2d 809 (Tex. Crim.

App. 1984). Jackson involves a court’s abuse of discretion in the procedure employed at

the sentencing phase; it has nothing to do with the actual sentence and, therefore, no

applicability to this case.2

        In reviewing a sentence under an “abuse of discretion” claim, we follow the

general rule that any sentence within the statutory range of punishment is not

excessive. McNew v. State, 608 S.W.2d 166, 174 (Tex. Crim. App. 1978); Price v. State, 35

S.W.3d 136, 144 (Tex. App.—Waco 2000, pet. ref’d). Appellant was convicted of assault

family violence, subsequent offense, under Texas Penal Code § 22.01(b)(2). Such an


1 To raise an Eighth Amendment issue on appeal, it must be brought to the attention of the trial court.
Kim v. State, 283 S.W.3d 473, 475 (Tex. App.—Fort Worth 2009, pet. ref’d) (following and discussing four
previous cases finding waiver where no objection to the sentence was presented to the trial court). In this
case, no Eighth Amendment objection was raised at the trial court level. This may be the reason he has
not raised an Eighth Amendment issue.

2 Jackson involved a defendant who was convicted after a bench trial. The judge died and was replaced
for the sentencing. The new judge relied exclusively on a pre-sentence investigation report to set
punishment. Over the defendant’s objections, he refused to review a transcription of the actual
witnesses’ testimony at the guilt/innocence phase of the trial.

Shelburg v. State                                                                                   Page 3
offense is a third degree felony punishable by anywhere from 2 to 10 years in prison

and an optional fine up to $10,000. TEX. PEN. CODE ANN. § 12.34 (West Supp. 2010). The

9 year sentence was within that range of punishment.

        Sentencing is necessarily subjective. Factors which one judge deems important

may be viewed differently by another judge. The trial court’s discretion allows it to

impose any sentence authorized by law.3

        The sentence in this case was within the statutory range of punishment. The trial

court did not abuse his discretion. We overrule appellant’s sole issue.

        Having overruled appellant’s sole ground of error, the judgment is affirmed.



                                                KEN ANDERSON
                                                District Judge

Before Chief Justice Gray,
       Justice Scoggins, and
       Judge Anderson4
Affirmed
Opinion delivered and filed April 27, 2011
Do not publish
[CR25]




3 We have set out the facts as developed in the case to put appellant’s argument in context. We are not,
however, relying on a subjective review of those facts to determine whether the trial court abused his
discretion.

4 Ken Anderson, Judge of the 277th District Court of Williamson County, sitting by assignment of the
Chief Justice of the Texas Supreme Court pursuant to Section 74.003(h) of the Government Code. See TEX.
GOV’T CODE ANN. § 74.003(h) (West 2005).

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