                              Fourth Court of Appeals
                                     San Antonio, Texas
                                             OPINION
                                        No. 04-12-00509-CV

                                   IN THE MATTER OF J.P.M.

                     From the 289th Judicial District Court, Bexar County, Texas
                                 Trial Court No. 2010-JUV-01181
                               Judge Carmen Kelsey, Judge Presiding

Opinion by:       Luz Elena D. Chapa, Justice

Sitting:          Catherine Stone, Chief Justice
                  Marialyn Barnard, Justice
                  Luz Elena D. Chapa, Justice

Delivered and Filed: July 31, 2013

AFFIRMED

           J.P.M. appeals an order removing him from the custody of the Texas Juvenile Justice

Department (TJJD) and transferring him to the Texas Department of Criminal Justice (TDCJ). See

TEX. FAM. CODE ANN. § 56.01 (c)(2) (West 2008 & Supp. 2012) (appeal may be taken from order

transferring custody of juvenile to TDCJ). He contends the order violates his rights under the

Eighth Amendment. We affirm.

                                            BACKGROUND

           When he was sixteen years of age, J.P.M. pled “true” to engaging in delinquent conduct

that would have constituted the first-degree felony offense of aggravated robbery with a deadly

weapon. See TEX. PENAL CODE ANN. § 29.03 (West 2011). At his disposition hearing and pursuant

to his plea bargain, the juvenile court ordered J.P.M. to a ten-year determinate sentence and
                                                                                                  04-12-00509-CV


committed him to the custody of the TJJD, with a possible transfer to the TDCJ. See TEX. FAM.

CODE ANN. § 54.04(d)(3)(A)(ii) (West 2008 & Supp. 2012) (allowing a juvenile court to sentence

a child to up to a forty-year determinate sentence for conduct which would constitute a first-degree

felony). The record before us does not show J.P.M. objected to his disposition.

        After J.P.M. turned eighteen, the TJJD requested a hearing in order to transfer J.P.M. to

the custody of the TDCJ. See TEX. HUM. RES. CODE ANN. § 244.014 (West 2013) (TJJD may

request a hearing to determine whether a child committed to its care under a determinate sentence

should be transferred to the TDCJ); TEX. FAM. CODE ANN. § 54.11 (West 2008 & Supp. 2012)

(requirements of transfer hearing). In turn, J.P.M. moved to modify his disposition and asked the

court to place him on probation. The juvenile court held a hearing at which both the State and

J.P.M. offered evidence; the court denied the motion to modify and ordered J.P.M. transferred to

the TDCJ.

                                           THE TRANSFER ORDER

        J.P.M. argues that the trial court abused its discretion when it transferred him to the custody

of the TDCJ because the court “failed to adequately engage in the proportionality review mandated

by the Eighth Amendment” by not taking into account the sentences imposed upon his

codefendants.

        Although J.P.M. is appealing the juvenile court’s transfer order, the substance of the appeal

is actually a challenge to his ten-year determinate sentence or disposition. 1 The question at the

transfer hearing was not whether transfer was fair in light of his codefendants’ sentences. In re

J.M.O., 980 S.W.2d 811, 813 (Tex. App.—San Antonio 1998, pet. denied) (“Under Texas case

law, the release/transfer hearing is not a trial. Unlike a trial, the juvenile is not being adjudicated


1
 “Disposition is a euphemism for sentencing and is used to honor the non-criminal character of the proceedings.” In
re K.T., 107 S.W.3d 65, 67 (Tex. App.—San Antonio 2003, no pet.) (en banc) (internal citation omitted).

                                                       -2-
                                                                                                  04-12-00509-CV


or sentenced.”). Instead, the purpose of the transfer hearing was to determine, under statutorily-

enumerated factors, whether J.P.M. merited transfer to the TDCJ, continued commitment under

the TJJD, or possible probation in accordance with his already received sentence. See TEX. FAM.

CODE ANN. § 54.11.

        In addition, it is far from clear how a proportionality analysis would be applied to a

juvenile’s transfer hearing. The narrow proportionality principle in the Eighth Amendment “‘does

not require strict proportionality between crime and sentence’ but rather ‘forbids only extreme

sentences that are “grossly disproportionate” to the crime.’” Graham v. Florida, 130 S.Ct. 2011,

2021 (2010) (quoting the controlling opinion in Harmelin v. Michigan, 501 U.S. 957, 997 (1991)

(Kennedy, J., concurring in part and concurring in judgment)); see also McGruder v. Puckett, 954

F.2d 313, 315–16 (5th Cir. 1992) (discussing the application of the divided opinions in Harmelin).

The gross disproportionality principle will invalidate a sentence only in an exceedingly rare and

extreme case. Lockyer v. Andrade, 538 U.S. 63, 73 (2003). A reviewing court first compares the

gravity of the defendant’s offense against the severity of his sentence. McGruder, 954 F.2d at 316;

Thomas v. State, 916 S.W.2d 578, 583–84 (Tex. App.—San Antonio 1996, no pet.). If the court

determines the sentence is grossly disproportionate to the offense, it then compares the sentence

to other sentences received by defendants for similar crimes in the same and other jurisdictions. 2

McGruder, 954 F.2d at 316; Thomas, 916 S.W.2d at 583–84. Notably, the focus of such an analysis

is on sentences.



2
  J.P.M.’s proportionality challenge is based on an alleged disparity between his sentence and that of his adult
codefendants. Ordinarily, the sentences imposed on codefendants are irrelevant to whether a punishment is cruel and
unusual. United States v. McKinney, 53 F.3d 664, 678 (5th Cir. 1995); Gonzales v. State, 501 S.W.2d 644, 646 (Tex.
Crim. App. 1973) (citing Overstreet v. United States, 367 F.2d 83, 83 (5th Cir. 1966) (per curiam)); see also Jacoby
v. State, 227 S.W.3d 128, 132 (Tex. App.—Houston [1st Dist.] 2006, pet. ref’d). However, his codefendants’ sentences
could potentially be relevant if J.P.M. had first demonstrated that his sentence was grossly disproportionate to his
offense. We would then look to the sentences received by others in the same jurisdiction for similar offenses, which
may have included his codefendants. McGruder, 954 F.2d at 316; Thomas, 916 S.W.2d at 583–84.

                                                       -3-
                                                                                     04-12-00509-CV


       The focus on sentences in the analysis demonstrates that the proper time for J.P.M. to have

challenged his determinate sentence as grossly disproportionate was at his disposition hearing. See

In re J.M.O., 980 S.W.2d at 813; Trevino v. State, 174 S.W.3d 925, 927 (Tex. App.—Corpus

Christi 2005, pet. ref’d) (“[Defendant] made no objection to his sentence to the trial court, either

at the time of sentencing or in any post-trial motion, on any grounds, nor did he ever lodge an

objection, under constitutional or other grounds, to the alleged disparity, cruelty, unusualness or

excessiveness of the sentences.”); but see In re D.M., No. 05-97-00455-CV, 1999 WL 605591, at

*12 (Tex. App.—Dallas Aug. 12, 1999, pet. denied) (mem. op., not designated for publication)

(holding an Eighth Amendment challenge to a determinate sentence not ripe until actual transfer

to the TDCJ). The transfer hearing’s purpose was to determine whether J.P.M. should be

transferred pursuant to the determinate sentence, which he had already received. Because the

proper time for J.P.M. to challenge his sentence as grossly disproportionate was at his disposition

hearing, we will not consider his challenge now.

                                          CONCLUSION

       We affirm the trial court’s order transferring J.P.M. to the custody of the TDCJ.


                                                   Luz Elena D. Chapa, Justice




                                                -4-
