                         NUMBER 13-17-00163-CR

                            COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                     CORPUS CHRISTI - EDINBURG


JOSE RODRIGUEZ III,                                                      Appellant,

                                          v.

THE STATE OF TEXAS,                                                      Appellee.


                   On appeal from the 36th District Court
                      of San Patricio County, Texas.


                         MEMORANDUM OPINION

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

supervision. By one issue, Rodriguez contends the eighteen-year sentence imposed by

the court in the adjudication hearing “was far in excess of that which was necessary to

accomplish all of the objectives of the Texas Penal Code under the facts of the case

adduced on the record and in light of the recommendations of both parties, and
constituted cruel [and] unusual punishment.” See U.S. CONST. amends. VIII, XIV; TEX.

CONST. art. 1, § 13; TEX. PENAL CODE ANN. § 1.02 (West, Westlaw through 2017 1st C.S.)

(identifying sentencing objectives). We affirm.

                                          I.       BACKGROUND

        On December 2, 2013, after Rodriguez pleaded guilty to possession of a controlled

substance, a second-degree felony offense, the trial court placed him on deferred

adjudication for five years. See TEX. HEALTH & SAFETY CODE ANN. § 481.115 (West,

Westlaw through 2017 1st C.S.). On March 10, 2017, at a hearing on the State’s motion

to revoke, the trial court accepted Rodriguez’s plea of true to five of the State’s allegations

and proceeded to adjudicate Rodriguez’s guilt.1

        During the sentencing hearing, Rodriguez testified that while on probation he had

maintained full-time employment driving a truck and working in construction, had not

pleaded guilty to any drug-related activity, and had not received any new convictions.

Rodriguez requested placement in a program at the Substance Abuse Felony

Punishment Facility (SAFPF). At the hearing, the State introduced, as State’s Exhibit A,

a revocation report prepared by the Community Supervision Department (the

Department). The Department recommended, in its report, that the trial court revoke

Rodriguez’s community supervision and sentence him to the Texas Department of

Criminal Justice Institutional Division (TDCJ-ID); if the trial court chose to continue




         1 Rodriguez pleaded true to the following allegations: (1) failure to report an arrest for delivery of

marijuana within two days of that arrest (November 28, 2016); (2) failure to report an arrest for unlawfully
carrying a weapon within two days of the arrest (November 28, 2016); (3) failure to submit to random
urinalysis (December 2016); (4) consumption of alcohol (December 28, 2016); and (5) failure to pay a
statutory supervisory fee (November 10, 2016).
                                                      2
Rodriguez on community supervision, the Department recommended that the court place

Rodriguez at an SAFPF.

         After receiving evidence, hearing arguments, and being informed by Rodriguez

that the State agreed to recommend continued probation, the trial court sentenced

Rodriguez to eighteen years in the TDCJ-ID. 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

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.    APPLICABLE LAW

         The Texas Penal Code sets out the following objectives of sentencing:

         The general purposes of this code are to establish a system of prohibitions,
         penalties, and correctional measures to deal with conduct that unjustifiably
         and inexcusably causes or threatens harm to those individual or public
                                                  3
      interests for which state protection is appropriate. To this end, the
      provisions of this code are intended, and shall be construed, to achieve the
      following objectives:

      (1)    to insure the public safety through:

             (A)    the deterrent influence of the penalties hereinafter provided;

             (B)    the rehabilitation of those convicted of violations of this code;
                    and

             (C)    such punishment as may be necessary to prevent likely
                    recurrence of criminal behavior;

      (2)    by definition and grading of offenses to give fair warning of what is
             prohibited and of the consequences of violation;

      (3)    to prescribe penalties that are proportionate to the seriousness of
             offenses and that permit recognition of differences in rehabilitation
             possibilities among individual offenders;

      (4)    to safeguard conduct that is without guilt from condemnation as
             criminal;

      (5)    to guide and limit the exercise of official discretion in law enforcement
             to prevent arbitrary or oppressive treatment of persons suspected,
             accused, or convicted of offenses; and

      (6)    to define the scope of state interest in law enforcement against
             specific offenses and to systematize the exercise of state criminal
             jurisdiction.

TEX. PENAL CODE ANN. § 1.02.

                        IV.    CRUEL AND UNUSUAL PUNISHMENT

A.    An Appellant Must Preserve a Cruel and Unusual Punishment Challenge

      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
                                             4
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

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.




                                               5
B.    A Sentence within the Punishment Range Is Not Per Se Excessive

      Even had Rodriguez preserved error, his sentence of eighteen years’

imprisonment for his second-degree felony conviction, 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. HEALTH & SAFETY CODE ANN.

§ 481.115(a), (d) (identifying possession of a controlled substance in penalty group 1,

e.g. cocaine, in the amount of four grams or more but less than two hundred grams, as a

second-degree felony); TEX. PENAL CODE ANN. § 12.33 (West, Westlaw through 2017

1st C.S.) (setting out punishment for a second-degree felony as incarceration in the

institutional division for not less than two years or more than twenty 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-CR; 2015

WL 4381090, *2 (Tex. App.—Corpus Christi July 16, 2015, no pet.) (mem. op., not

designated for publication).

C.    We Look to the Underlying Offense and Not to the Community-Supervision
      Violations to Determine Whether a Sentence Is Cruel and Unusual
      Punishment

      Nonetheless, Rodriguez argues that the punishment assessed by the trial court

was cruel and unusual because his violations were “technical or comparatively minor

relative to the type of violations that normally trigger a draconian sentence of the sort

meted out by this particular felony Court.” We are not persuaded by this argument.

      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). And
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the record in this case reveals that the underlying offense for which Rodriguez was

convicted was a drug offense involving an assault/family violence incident. Officers

responded to a 911 call, where Rodriguez’s wife informed them that Rodriguez was using

drugs in front of the children. After being told that Rodriguez kept the drugs in a safe,

the officers opened the safe and found a quart-size plastic bag that contained a few rock-

like pieces the size of a quarter that were later determined to be cocaine. Rodriguez’s

wife also told the officers that she had locked herself in the restroom of their home and

that Rodriguez had broken down the door, injuring her in the process. She feared for

herself and the children. Rodriguez claimed that he was holding the drugs for a friend

and was just trying to feed his family.

       Here, the offense for which Rodriguez was given community supervision and for

which he was adjudged guilty and incarcerated was possession of a controlled substance,

a second-degree felony offense. See TEX. HEALTH & SAFETY CODE ANN. § 481.115. We

look to this offense to determine whether the punishment is cruel and unusual. See

Mathews, 918 S.W.2d at 669. And in so doing, we cannot conclude that the trial court

abused its nearly unfettered discretion in imposing the eighteen-year sentence. Ex parte

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

D.     A Trial Court Is Not Bound by the Parties’ Probation Recommendation

       Rodriguez also contends that the trial court abused its discretion when it revoked

his community supervision even though the State had agreed to continue it. While

observing that the trial court is not bound by the recommendation of the parties in a

revocation hearing, Rodriguez complains that the trial court “paid no heed” to the State

and the defense’s “equitable resolution to the case.” Rodriguez provides no supporting
                                            7
authority, and we find none, for his argument that the trial court abused its discretion by

failing to “heed” the parties’ agreed recommendation to continue Rodriguez’s community

supervision with another treatment program.        Instead, when a court proceeds to

adjudicate a deferred-adjudication community supervision, the court is no longer limited

by the procedures of article 26.13, which require, among other things, that the trial court

inform the defendant regarding whether it will sentence him in accordance with a plea

agreement. See Ex parte Broadway, 301 S.W.3d 694, 698 n.10 (Tex. Crim. App. 2009)

(en banc); see also TEX. CODE CRIM. PROC. ANN. art. 26.13(2) (West, Westlaw through

2017 1st C.S.). There are no article 26.13 protections in a revocation proceeding. See

TEX. CODE CRIM. PROC. ANN. art. 26.13(2). Neither an earlier plea bargain nor the State’s

agreement to recommend the continuance of community supervision will protect a

defendant who receives deferred-adjudication community supervision if the court

proceeds to adjudication at a later date. Ex parte Broadway, 301 S.W.3d at 698, n.10.

The only thing certain at a revocation proceeding is that the trial court has discretion to

assess any punishment statutorily permitted. See id.; Ex parte Chavez, 213 S.W.3d at

323. This argument has no merit.

E.     Appellant’s Remaining General Arguments Are Not Supported by Authority

       Finally, Rodriguez refers to the penal code’s sentencing objectives and generally

argues “that probation reinstatement with drug treatment would have been much more

appropriate in this case, and would have accomplished all of the sentencing objectives of

the Texas Penal Code [section 1.02] . . . . The court’s sentence is counterproductive to

the goal of deterrence as well as other Penal Code objectives.” Rodriguez provides no

case law in support of his remaining arguments that might relate to the impact of the facts
                                            8
of this case on the sentencing objectives.2 See TEX. R. APP. P. 38.1(i). Without more,

we conclude that Rodriguez inadequately briefed any remaining general arguments and

presents nothing for our review. See id.

F.      In Summary, the Trial Court Did Not Abuse Its Discretion

        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. Ex parte Chavez, 213 S.W.3d at 232; Trevino, 174 S.W.3d at

928. We overrule Rodriguez’s appellate issue.

                                                    IV.     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 Rodriguez cites section 3553 of chapter 18 of the U.S. Code “as a good example of the

recognition of the concept of not meting out punishment that is greater than necessary to accomplish the
objectives of a particular sentencing scheme and the U.S. Constitution.” See 18 U.S.C.A. § 3553 (West,
Westlaw through P.L. 111-174) (“The court shall impose a sentence sufficient, but not greater than
necessary, to comply with the purposes set forth in paragraph (2) of this subsection . . . . .”). However, as
Rodriguez acknowledges, section 3553 of chapter 18 of the U.S. Code is not binding on Texas courts.
See generally Villarreal v. State, 267 S.W.3d 204, 208 (Tex. App.—Corpus Christi 2008, no pet.) (“Fifth
Circuit precedent is not binding on Texas courts, and its constitutional pronouncements are highly
persuasive at best.”). We also decline to consider section 3553 because Texas has set out its sentencing
objectives in section 1.02 of the Texas Penal Code, and we have discussed Rodriguez’s reference to those
objectives above. See TEX. PENAL CODE ANN. § 1.02 (West, Westlaw through 2017 1st C.S.).

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