                                       In The

                                 Court of Appeals
                      Ninth District of Texas at Beaumont
                               _________________
                                NO. 09-12-00227-CR
                               _________________

                      JOEL ALEJANDRO RUIZ, Appellant

                                         V.

                          THE STATE OF TEXAS, Appellee

________________________________________________________________________

                     On Appeal from the 252nd District Court
                            Jefferson County, Texas
                           Trial Cause No. 11-11967
________________________________________________________________________

                            MEMORANDUM OPINION

      Joel Alejandro Ruiz1 appeals from the trial court’s revocation of his

community supervision. In one issue, Ruiz contends that his sentence is

disproportionate to the crime committed. We overrule Ruiz’s issue and affirm the

trial court’s judgment.




      1
          Joel Alejandro Ruiz is also known as Alex.
                                          1
      Ruiz was indicted for the offense of burglary of a habitation. In accordance

with a plea bargain agreement, Ruiz entered a plea of guilty to the offense. See

Tex. Penal Code Ann. § 30.02 (a)(1), (c)(2) (West 2011). The trial court found the

evidence sufficient to find Ruiz guilty, but deferred finding him guilty, and placed

him on community supervision for five years. The State subsequently filed a

motion to revoke Ruiz’s community supervision.          Ruiz pled “true” to three

violations of the terms of his community supervision. Thereafter, the trial court

found that Ruiz violated the terms of the community supervision order, found Ruiz

guilty of burglary of a habitation, revoked Ruiz’s community supervision, and

imposed a sentence of 11 years of confinement.

      Ruiz argues that he should have been charged with attempted theft and not

burglary of a habitation. A defendant placed on deferred adjudication community

supervision may raise issues relating to the original plea proceeding only in

appeals taken when deferred adjudication community supervision is first imposed

and may not wait to raise such issues in an appeal from revocation of deferred

adjudication community supervision. Manuel v. State, 994 S.W.2d 658, 661-62

(Tex. Crim. App. 1999) (citing Tex. Code Crim. Proc. Ann. art. 44.01(j) (West

Supp. 2012)). Because Ruiz’s complaint does not relate to the revocation of his

community supervision, we are without jurisdiction to consider this issue.

                                         2
      Ruiz contends that his sentence is disproportionate to the crime committed;

however, the record shows that during the hearing, Ruiz never objected to the

punishment the trial court pronounced and did not file a motion for new trial.

Because Ruiz failed to raise this complaint to the trial court, he has failed to

preserve this issue for review. See Tex. R. App. P. 33.1(a)(1); see also Rogers v.

State, 640 S.W.2d 248, 264 (Tex. Crim. App. 1982) (second op. on reh’g).

      Even if Ruiz had properly preserved this issue for review, we find his

argument to be without merit. In reviewing a trial judge’s determination as to

punishment, we will not overturn a trial judge’s decision on punishment absent a

showing of an abuse of discretion. See Jackson v. State, 680 S.W.2d 809, 814 (Tex.

Crim. App. 1984). When a defendant is adjudicated guilty, he is subject to the

entire range of punishment for the offense. Ditto v. State, 988 S.W.2d 236, 239 n.7

(Tex. Crim. App. 1999). As a general rule, a sentence that is within the range of

punishment established by the Legislature will not be disturbed on appeal.

Jackson, 680 S.W.2d at 814. Further, the court does not generally consider a

punishment that is within the statutory range for the offense excessive,

unconstitutionally cruel, or unusual under either the Texas or the United States

Constitution. See Kirk v. State, 949 S.W.2d 769, 772 (Tex. App.—Dallas 1997,



                                        3
pet. ref’d); see also Jackson v. State, 989 S.W.2d 842, 846 (Tex. App.—Texarkana

1999, no pet.).

      Burglary of a habitation is a second degree felony, which carries a

punishment range of confinement from two to twenty years. See Tex. Penal Code

Ann. § 12.33 (West 2011). Ruiz’s sentence of 11 years is within the statutory

range the Legislature authorized for the crime of unauthorized use of a motor

vehicle. See id.

      The court in Jackson recognized that a prohibition against grossly

disproportionate sentences survives apart from consideration of whether the

sentence assessed is within the statutory range. Jackson, 898 S.W.2d at 846. But

as the record contains no evidence of “sentences imposed for similar offenses on

criminals in Texas or other jurisdictions by which to make a comparison[,]” we

find that Ruiz failed to prove that his sentence was grossly disproportionate. See id.

      Based on the record before us, we are unable to conclude that Ruiz’s

sentence constitutes a cruel and unusual punishment. We overrule Ruiz’s

constitutional challenges to the length of the sentence assessed by the trial court,

and affirm the judgment of the trial court.

      AFFIRMED.



                                          4
                                                 ___________________________
                                                     CHARLES KREGER
                                                           Justice

Submitted on March 19, 2013
Opinion Delivered May 8, 2013
Do not publish

Before McKeithen, C.J., Kreger and Horton, JJ.




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