                              Fourth Court of Appeals
                                     San Antonio, Texas
                                 MEMORANDUM OPINION

                                        No. 04-18-00592-CR

                                          Roberto PEREZ,
                                             Appellant

                                                  v.

                                        The STATE of Texas,
                                              Appellee

                    From the 63rd Judicial District Court, Val Verde County, Texas
                                      Trial Court No. 14022CR
                           Honorable Enrique Fernandez, Judge Presiding

Opinion by:       Rebeca C. Martinez, Justice

Sitting:          Sandee Bryan Marion, Chief Justice
                  Rebeca C. Martinez, Justice
                  Luz Elena D. Chapa, Justice

Delivered and Filed: September 4, 2019

AFFIRMED

           Appellant Roberto Perez was convicted by a jury for retaliation against a public servant

and punishment was assessed at ten-years confinement. In his sole point of error, Perez argues

that his constitutional rights to due process and protection against cruel and unusual punishment

under the federal and state constitutions were violated by the jury’s imposition of a ten-year

sentence.
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                                            BACKGROUND

        On June 12, 2017, Officer Darren Johnson responded to a disturbance at the Val Verde

County Library (the “Library”). Upon arrival at the Library, Officer Johnson saw Perez sitting

beneath a tree holding a can of beer. Officer Johnson offered to drive Perez to a public park in the

neighborhood where he could drink his beer without violating the law. Perez agreed and Officer

Johnson dropped Perez off at the park.

        Later that day, Officer Johnson responded to another reported disturbance involving Perez

at a park. While en route to the park, Officer Johnson heard a report over the police radio

concerning the discovery of damaged property at the Library. Suspecting Perez may have caused

the damage, Officer Johnson detained Perez and placed him in the backseat of his patrol car.

Officer Johnson testified that Perez then became “agitated” and “aggressive.” Officer Johnson

smelled a strong odor of alcohol on Perez’s breath. Officer Johnson informed Perez he was under

arrest for public intoxication and would be taken into custody. According to Officer Johnson,

Perez became more aggressive after being told he was under arrest.

        Perez began making death threats toward Officer Johnson while Officer Johnson was

transporting Perez to the police station. Officer Johnson testified that Perez “started making threats

that he wanted to kill [Officer Johnson] . . . and kill [his] family,” and repeatedly said “I’ll kill you,

I’ll kill you, I’ll kill your whole family.” According to Officer Johnson, Perez threatened to kill

him and his family “approximately seven times,” including one final threat Perez made while

staring at Officer Johnson: “I will kill you with my bare hands.” On August 8, 2018, Perez was

convicted by a jury for retaliation against a public servant and was sentenced to the statutory

maximum of ten years in prison. Perez appeals.




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                                            DISCUSSION

       For the first time on appeal, Perez argues his ten-year sentence constitutes cruel and

unusual punishment—in violation of his constitutional rights under the Eighth Amendment of the

United States Constitution and article I, section thirteen of the Texas Constitution—because his

sentence is grossly disproportionate to his crime. The State argues Perez waived the issue because

he failed to preserve error. Perez argues the violation is fundamental error that cannot be waived.

   A. Waiver

       In order to preserve error for appellate review, a party must make a timely request,

objection, or motion in the trial court. Henson v. State, 407 S.W.3d 764, 767 (Tex. Crim. App.

2013). Failure to preserve error at trial forfeits the later assertion of that error on appeal. Fuller

v. State, 253 S.W.3d 220, 232 (Tex. Crim. App. 2008); see also TEX. R. APP. P. 33.1(a) (“As a

prerequisite to presenting a complaint for appellate review, the record must show that . . . the

complaint was made to the trial court by a timely request, objection or motion that . . . stated the

grounds for the ruling that the complaining party sought from the trial court with sufficient

specificity to make the trial court aware of the complaint . . . .”). “This rule applies to all but the

most fundamental rights.” Henson, 407 S.W.3d at 767; see also Saldano v. State, 70 S.W.3d 873,

887 (Tex. Crim. App. 2002) (affirming some, but not all, constitutional rights may be forfeited).

       Texas courts have consistently recognized that a claim against cruel and unusual

punishment can be waived if the appellant does not raise an objection in the trial court. See, e.g.,

Reynolds v. State, 423 S.W.3d 377, 383 (Tex. Crim. App. 2014) (“‘As applied’ constitutional

claims are subject to the preservation requirement and therefore must be objected to at the trial

court in order to preserve error.”); Rhoades v. State, 934 S.W.2d 113, 120 (Tex. Crim. App. 1996);

Reynolds v. State, 430 .W.3d 467, 471 (Tex. App.—San Antonio 2014, no pet.); Noland v. State,

264 S.W.3d 144, 151 (Tex. App.—Houston [1st Dist.] 2007, pet. ref’d); Williams v. State, 191


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S.W.3d 242, 262 (Tex. App.—Austin 2006, no pet.); Castaneda v. State, 135 S.W.3d 719, 723

(Tex. App.—Dallas 2003, no pet.). An appellant forfeits his right to argue that his sentence

constitutes cruel and unusual punishment by failing to properly and timely object in the trial court.

Rhoades, 934 S.W.2d at 120; see also Curry v. State, 910 S.W.2d 490, 497–98 (Tex. Crim. App.

1995) (holding point of error is overruled due to appellant’s failure to preserve error “because there

was no objection urged at trial”); Schneider v. State, 645 S.W.2d 463, 466 (Tex. Crim. App. 1983)

(holding appellant did not raise contention against cruel and unusual punishment in the trial court

and consequently the error was not preserved for review). Here, Perez acknowledges that he failed

to object to the ten-year sentence at trial. Because Perez failed to lodge a specific objection

regarding cruel and unusual punishment in the trial court, he waived review of this issue on appeal.

   B. Grossly Disproportionate Sentence

   Even assuming Perez properly preserved error, his ten-year sentence does not constitute cruel

and unusual punishment under the United States Constitution or the Texas Constitution.

       1. Texas Constitution

       In Texas, it has long been recognized that if a punishment assessed by the trial court is

within “the limits prescribed by the statute,” there is no violation of the state constitutional

provisions against cruel and unusual punishment. Samuel v. State, 477 S.W.2d 611, 614 (Tex.

Crim. App. 1972); see also Jordan v. State, 495 S.W.2d 949, 952 (Tex. Crim. App. 1973) (holding

a sentence that falls within the ranges prescribed by the legislature was not “excessive, unusual

and cruel”); Darden v. State, 430 S.W.2d 494, 496 (Tex. Crim. App. 1968) (“If the punishment is

within that prescribed by the statute, it is beyond the province of this Court to [address] the question

of excessive punishment”); Lambright v. State, 318 S.W.2d 653, 653 (Tex. Crim. App. 1958)

(holding the extent of the punishment assessed by the trial court does not constitute error when the

punishment is within the limits authorized by law).


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       Here, Perez’s ten-year sentence is within the range of punishment prescribed by the

legislature for this crime. Because Perez’s assessed punishment for retaliation against a public

servant—a third degree felony—is within the two to ten-year range allowed by section 12.34(a) of

the Texas Penal Code, Perez’s punishment does not violate the state’s constitutional provisions

against cruel and unusual punishment. See Samuel v. State, 477 S.W.2d at 614; see also TEX.

PENAL CODE ANN. § 12.34(a).

       2. United States Constitution

       The United States Supreme Court has held “as a matter of principle [] a criminal sentence

must be proportionate to the crime for which the defendant has been convicted.” Solem v. Helm,

463 U.S. 277, 290 (1983). In Solem, the Supreme Court set forth a proportionality analysis that is

to be used as guidance for courts reviewing sentences under the Eight Amendment. Id. “A court’s

proportionality analysis . . . should be guided by objective criteria, including (i) the gravity of the

offense and the harshness of the penalty; (ii) the sentences imposed on other criminals in the same

jurisdiction; and (iii) the sentences imposed for commission of the same crime in other

jurisdictions.” Id. at 292. After Solem, the Supreme Court re-examined its analysis in Harmelin

v. Michigan, 501 U.S. 957 (1991). However, the Harmelin Court “left much uncertainty in its

wake.” Puga v. State, 916 S.W.2d 547, 549 (Tex. App.—San Antonio 1996, no pet.). Because of

such uncertainty, the Fifth Circuit decided to examine and interpret “Solem [] in the light of

Harmelin . . . .” McGruder v. Puckett, 954 F.2d 313, 315 (5th Cir. 1992). The Fifth Circuit made

“a threshold comparison of the gravity of [the] offenses against the severity of [the] sentence.” Id.

at 316. “Only if [the court] infer[red] that the sentence [was] grossly disproportionate to the

offense [would they] consider the remaining factors of the Solem test . . . .” Id.

       Following the Fifth Circuit’s interpretation, our threshold consideration is the comparison

between the gravity of Perez’s offenses against the severity of his sentence. See Smith v. State,


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256 S.W.3d 341, 344 (Tex. App.—San Antonio 2007, no pet.) (“[O]nly upon determination that a

sentence is grossly disproportionate to the offense does an appellate court consider the remaining

two factors.”).

       In this case, the jury found Perez guilty of the third-degree felony offense of retaliation

against a public servant. Perez asked to have his punishment assessed by the jury. Perez’s prior

convictions and the patrol car video, which showed Perez threatening Officer Johnson, were

among the evidence considered by the jury during the punishment phase. Perez testified that he

had been in the penitentiary five times and had been convicted for robbery and assault in the past.

Perez also admitted to threatening to cut an officer’s head off with a machete.

       Officer Johnson testified Perez’s threats crossed the line because they were direct and

personal, stating, “I’ve received many threats as a correctional officer . . . what’s different about

this event, it was direct, it wasn’t indirect” because Perez “wanted to kill me personally and my

family.” Officer Johnson testified that the severity of the repeated threats aimed at him and his

family scared him, and he believed Perez showed intent to act on his threats. Officer Johnson

believed if Perez “[were] out the next day, [Perez] would be looking for [Officer Johnson] and

[his] family.” Here, the jury could have reasonably concluded that Perez intended to act on his

threats because of Perez’s past criminal record and the severity of the threats against Officer

Johnson and his family, and, based on these factors, assessed punishment at the statutory maximum

of ten-years confinement. We cannot hold that Perez’s sentence is grossly disproportionate to his

crime. Cf. Lockyer v. Andrade, 538 U.S. 63, 77 (2003) (“The gross disproportionality principle

reserves a constitutional violation for only the extraordinary case[s].”); Solem, 463 U.S. at 303

(holding a sentence of life imprisonment without the possibility of parole for the crime of uttering

a no-account check for $100 is considered grossly disproportionate); Weems v. United States, 217




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U.S. 349, 382 (1910) (holding a sentence of fifteen-years imprisonment for a crime of falsifying a

public record is considered “repugnant to the Bill of Rights”).

       Comparing the gravity of Perez’s offense to the severity of the sentence assessed by the

jury, we conclude Perez’s sentence is not grossly disproportionate to the crime. Because Perez did

not meet this threshold requirement, his sentence did not violate the Eighth Amendment’s

prohibition on cruel and unusual punishment, and there is no need to address the remaining Solem

factors. See Smith, 256 S.W.3d at 344; see also Puga, 916 S.W.2d at 550 (“[W]e hold that

appellant’s sentence is not grossly disproportionate to his crime, accordingly, we do not decide

what role, if any, the remaining factors of Solem play in his disproportionality points of error.”).

       Perez’s sole issue is overruled.

                                           CONCLUSION

       The judgment of the trial court is affirmed.

                                                  Rebeca C. Martinez, Justice

DO NOT PUBLISH




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