                          NUMBER 13-17-00189-CR

                             COURT OF APPEALS

                   THIRTEENTH DISTRICT OF TEXAS

                      CORPUS CHRISTI - EDINBURG


JOE ANTHONY RODRIGUEZ,                                                 Appellant,

                                            v.

THE STATE OF TEXAS,                                                    Appellee.


                    On appeal from the 24th District Court
                         of Victoria County, Texas.


                          MEMORANDUM OPINION

            Before Justices Rodriguez, Longoria, and Hinojosa
               Memorandum Opinion by Justice Rodriguez
      Appellant Joe Anthony Rodriguez appeals from the revocation of his community

supervision.   By one issue, Rodriguez contends that the assessment of two years’

incarceration in a State Jail facility was cruel and unusual. See U.S. CONST. amends.

VIII, XIV; TEX. CONST. art. 1, § 13. We affirm.
                                         I.      BACKGROUND

       Rodriguez was indicted on five counts of forgery, each count a state jail felony.

See TEX. PENAL CODE ANN. § 32.21(d) (West, Westlaw through 2017 1st C.S.). On

May 1, 2015, Rodriguez pleaded guilty to Count 5.1 See id. The trial court sentenced

Rodriguez to two years’ confinement in a state jail facility, suspended to four years’

community supervision. It also assessed a $500 fine and court costs against Rodriguez

and ordered him to pay $1,800 in restitution. On December 7, 2016, the State filed a

motion to revoke Rodriguez’s community supervision. In its motion, the State alleged

that Rodriguez committed a new criminal offense by violating a protective order, left his

county of approved residency, and failed to pay supervisory fees, court costs, restitution,

and a fee to the local Crime Stoppers program.

       At the March 9, 2017 hearing on the State’s motion to revoke, the State called

Sally Rodriguez to testify. Ms. Rodriguez established that she had a protective order in

place against Rodriguez. The trial court admitted a copy of that protective order into

evidence. Ms. Rodriguez also testified that for ten years Rodriguez had repeatedly

physically assaulted her, had shot at her house, had vandalized her friends’ automobiles,

had threatened to burn her home down, and had made harassing and threatening

telephone calls to her, even from jail after his arrest.

       The State called Deputy Glen Grasham of the Refugio County Sheriff’s

Department as a witness at the hearing. Deputy Grasham testified that on October 25,




       1   The judgment reflects that the State abandoned Counts 1, 2, 3, and 4.
                                                    2
2016, he observed Rodriguez traveling in the same automobile with Ms. Rodriguez,

although a protective order prohibited him from being within 200 yards of Ms. Rodriguez.

        Danielle Hilscher, Rodriguez’s community supervision officer, also testified. She

explained that Rodriguez owed child support and other probation financial obligations

because he had been incarcerated for not paying child support, had his wallet stolen, had

payments to make “on his bed, his TV, and his laptop,” and had paid for repairs to

Ms. Rodriguez’s car. Hilscher reported that Rodriguez told her that his work had been

slow. In response to the court’s question of whether Rodriguez was “still amenable on

probation,” Hilscher responded, “My personal recommendation would be that he may

remain on probation but possibly sentenced to ISF[, an Intermediate Sanctions Facility

Alcohol Treatment Program,] for his violations.”

        At the conclusion of the hearing, the trial court found the allegations in the State’s

motion to revoke to be true. The trial court also found Ms. Rodriguez’s testimony to be

credible. It revoked Rodriguez’s community supervision, sentenced him to two years’

confinement in a state jail facility, and assessed a $500 fine, restitution of $1,800, and

court costs. Rodriguez did not object to the sentence imposed by the trial court and later

filed no motion for new trial challenging the constitutionality of his sentence. This appeal

followed.

                                II.    STANDARD OF REVIEW

        The Eighth Amendment of the United States Constitution provides that “[e]xcessive

bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishment

inflicted.”   U.S. CONST. amend. VIII; see TEX. CONST. art. 1, § 13.             The Eighth

                                              3
Amendment applies to punishments imposed by state courts through the Due Process

Clause of the Fourteenth Amendment. U.S. CONST. amend. XIV. A punishment within

the limits prescribed by a valid statute “is not, per se, prohibited as cruel, unusual, or

excessive.” Trevino v. State, 174 S.W.3d 925, 928 (Tex. App.—Corpus Christi 2005,

pet. ref’d). And when a sentence is within the prescribed statutory range set down by

the legislature, sentencing authorities have nearly unfettered discretion to impose any

punishment within that range. Ex parte Chavez, 213 S.W.3d 320, 323 (Tex. Crim. App.

2006).

                        III.   CRUEL AND UNUSUAL PUNISHMENT

A.       Preservation

         The right to be free from cruel and unusual punishment and almost every

constitutional or statutory right can be waived by failure to object. See Smith v. State,

721 S.W.2d 844, 855 (Tex. Crim. App. 1986) (en banc); Quintana v. State, 777 S.W.2d

474, 479 (Tex. App.—Corpus Christi 1989, pet. ref’d) (holding that the defendant waived

his cruel and unusual punishment argument by failing to object); see also Noland v. State,

264 S.W.3d 144, 151–52 (Tex. App.—Houston [1st Dist.] 2007, pet. ref’d) (concluding

that by failing to object the appellant did not preserve an argument that the sentence was

grossly disproportionate to offense); Maza v. State, No. 13-14-00128-CR, 2015 WL

3637821, at *2 (Tex. App.—Corpus Christi June 11, 2015, no pet.) (mem. op., not

designated for publication) (disagreeing that appellant should be allowed to make his

eighth amendment violation argument for the first time on appeal because he did not

object in the trial court and thus his argument was not preserved).       To preserve a

                                            4
complaint of cruel and unusual punishment, the criminal defendant must make a timely,

specific objection to the trial court or raise the issue in a motion for new trial. See TEX.

R. APP. P. 33.1(a); Kim v. State, 283 S.W.3d 473, 475 (Tex. App.—Fort Worth 2009, pet.

ref’d) (citing Rhoades v. State, 934 S.W.2d 113, 120 (Tex. Crim. App. 1996) (en banc));

Noland, 264 S.W.3d at 151–52; see also Trevino, 174 S.W.3d at 927–28 (“Because the

sentence imposed is within the punishment range and is not illegal, we conclude 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.”).

       Rodriguez did not object when the trial court imposed sentence and did not

complain of the sentence in any post-trial motion that the sentence was excessive or

violated the Eighth Amendment. Rodriguez failed to preserve this issue for our review.

See TEX. R. APP. P. 33.1; Smith, 721 S.W.2d at 855; Kim, 283 S.W.3d at 475; Noland,

264 S.W.3d at 151–52; Trevino, 174 S.W.3d at 927–28; Quintana, 777 S.W.2d at 479.

B.     Sentence within the Punishment Range Is Not Per Se Excessive

       Even had Rodriguez preserved error, his sentence of two years in a state jail facility

for his state jail felony offense of forgery, although at the top of the punishment range

authorized by statute for the offense, falls within the legal range set down by the state

legislature for that offense. See TEX. PENAL CODE ANN. § 32.21(d); TEX. PENAL CODE ANN.

§ 12.35 (West, Westlaw through 2017 1st C.S.) (setting out punishment for a state jail

felony as incarceration in the state jail for not less than six months or more than two years

and up to a $10,000 fine). So his sentence was not prohibited as per se excessive, cruel,

or unusual. See Trevino, 174 S.W.3d at 928; see also Cowan v. State, No. 13-14-00358-

                                               5
CR; 2015 WL 4381090, *2 (Tex. App.—Corpus Christi July 16, 2015, no pet.) (mem. op.,

not designated for publication).

C.     Proportionality of the Sentence to the Offense

       Nevertheless, Rodriguez complains that the trial court neglected to consider the

proportionality of his punishment for the forgery offense to his ability to meet the financial

obligations. He contends that the trial court’s assessment of the maximum punishment

of two years’ incarceration in a state jail facility for his forgery conviction was, thus, cruel

and unusual. We disagree.

       1.      Solem v. Helm’s Proportionality Review

       Rodriguez relies on Solem v. Helm as his authority. See 463 U.S. 277, 291

(1983).     In Solem, the United States Supreme Court established three factors for

analyzing a sentence’s proportionality:      (1) the gravity of the offense relative to the

harshness of the penalty; (2) the sentences imposed for other crimes in the jurisdiction;

and (3) the sentences imposed for the same crime in other jurisdictions. See 463 U.S.

at 292. If we conclude under the first Solem factor that the sentence is not grossly

disproportionate to the offense, we need not consider the remaining factors that compare

the sentence received to sentences imposed for similar crimes in Texas and sentences

imposed for the same crime in other jurisdictions. See Sneed v. State, 406 S.W.3d 638,

643 (Tex. App.—Eastland 2013, no pet.) (citing McGruder v. Puckett, 954 F.2d 313, 316

(5th Cir. 1992)); see also TEX. R. APP. P. 47.1.

       And as we recognized in Trevino, “the viability and mode of application of the

[Solem] proportionate analysis in non-death penalty cases has been questioned since the

                                               6
Supreme Court’s decision in Harmelin v. Michigan.” Trevino, 174 S.W.3d at 928 (citing

McGruder v. Puckett, 954 F.2d 313, 315–16 (5th Cir. 1992); Harmelin, 111 S.Ct. 2680

(1991)); Sullivan v. State, 975 S.W.2d 755, 757–58 (Tex. App.—Corpus Christi 1998, no

pet.); see also Nealy v. State, No. 13-11-00288-CR, 2013 WL 1092417, at *3 (Tex. App.—

Corpus Christi Mar. 14, 2013, pet. ref’d) (mem. op., not designated for publication). In

Trevino, we assumed the viability of a proportionality review to analyze the issue brought

on appeal. 174 S.W.3d at 928. Now in this case, because Rodriguez premises his

entire appellate argument on Solem, we will again assume the viability of Solem’s

proportionality review. See Solem, 463 U.S. at 292; Trevino, 174 S.W.3d at 928.

       2.     Considerations

       Relying on Solem, Rodriguez argues that the record is devoid of any consideration

of his financial situation in the court’s decision to impose the maximum sentence of two

years in a state jail facility. He complains that the trial court’s analysis “neglects the

proportionality of [his] punishment in relation to the offense to which he pled guilty

originally, forgery, and his ability to meet the financial obligations of probation.” We are

not persuaded by Rodriguez’s argument.

       While the evidence revealed that Rodriguez had financial difficulties, we do not

look to the grounds for adjudication in a motion-to-revoke proceeding to determine if the

sentence is cruel and unusual; “we look to the facts of the crime.” Mathews v. State, 918

S.W.2d 666, 669 (Tex. App.—Beaumont 1996, pet. ref’d). The record establishes that

Rodriguez committed a forgery. Upon his plea of guilty, the trial court placed Rodriguez

on community supervision for four years.

                                             7
       In addition, the State offered evidence, showing that Rodriguez had engaged in

actions against Ms. Rodriguez and others for over ten years. The trial court apparently

deemed this evidence relevant to sentencing and useful in deciding Rodriguez’s

appropriate punishment. See TEX. CODE CRIM. PROC. ANN. art. 37.07, § 3(a)(1) (West,

Westlaw through 2017 1st C.S.) (“[E]vidence may be offered by the [S]tate and the

defendant as to any matter the court deems relevant to sentencing.”); Arthur v. State, 11

S.W.3d 386, 392 (Tex. App.—Houston [14th Dist.] 2000, pet. ref’d) (quoting Mendiola v.

State, 924 S.W.2d 157, 163 (Tex. App.—Corpus Christi 1995, pet. ref’d, untimely filed)

(providing that one purpose of article 37.07 is for the factfinder to “learn ‘as much useful

information as possible in deciding the appropriate punishment for the individual

defendant’”); see also Peters v. State, 31 S.W.3d 704, 716–17 (Tex. App.—Houston [1st

Dist.] 2000, pet. ref’d) (noting that article 37.07 encourages “truth in sentencing” by

opening the doors to all relevant evidence in the punishment phase); Garza v. State, No.

13-11-00076-CR, 2012 WL 1572206, at *3 (Tex. App.—Corpus Christi May 3, 2012, pet.

ref’d) (mem. op., not designated for publication). Finally, we note that the trial court

revoked Rodriguez’s community supervision not only for failing to comply with his financial

obligations, which he claims were complicated by his financial circumstances, but also for

violating an order that was in place to protect Ms. Rodriguez. See Ex parte Lea, 505

S.W.3d 913, 915 (Tex. Crim. App. 2016) (“After a defendant is placed on community

supervision, it can be revoked based on a sole violation of a condition of that

supervision.”).




                                             8
       Assuming the viability of the Solem factors, specifically the first factor that

addresses the gravity of the offense relative to the harshness of the penalty, the trial

court’s sentence of two years in a state jail facility is not a grossly disproportionate

sentence for Rodriguez’s forgery offense. 2           We cannot conclude that the trial court

abused its nearly unfettered discretion in imposing the two-year state jail sentence. See

Ex parte Chavez, 213 S.W.3d at 323.

D.     Summary

       Even had Rodriguez preserved this issue, the sentence falls within the punishment

range and is neither prohibited as per se excessive, cruel, or unusual nor disallowed as

an abuse of discretion. See id.; Trevino, 174 S.W.3d at 928. We overrule Rodriguez’s

appellate issue.

                                      V.        CONCLUSION

       We affirm the judgment of the trial court.


                                                                      NELDA V. RODRIGUEZ
                                                                      Justice

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

Delivered and filed the 11th
day of January, 2018.




        2 Having concluded that Rodriguez’s sentence was not grossly disproportionate to the forgery

offense, we do not consider the remaining Solem factors. See Sneed v. State, 406 S.W.3d 638, 643 (Tex.
App.—Eastland 2013, no pet.). Further Rodriguez does not discuss the second and third Solem factors,
so we do not consider them. See TEX. R. APP. P. 457.1.
                                                  9
