                             NUMBER 13-17-00237-CR

                            COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                    CORPUS CHRISTI – EDINBURG

JOHN JEREMY LOVEALL,                                                         Appellant,

                                            v.

THE STATE OF TEXAS,                                                           Appellee.


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


                         MEMORANDUM OPINION
           Before Justices Rodriguez, Contreras, and Hinojosa
               Memorandum Opinion by Justice Contreras

       Appellant John Jeremy Loveall appeals from the revocation of his community

supervision. The trial court sentenced appellant to two years’ imprisonment in a state jail

facility. By one issue, appellant argues that the punishment assessed by the trial court is

excessive under the facts of the case. We affirm.
                                   I.   BACKGROUND

       Appellant was indicted on July 29, 2014 for possession of less than one gram of

methamphetamine with intent to deliver, a state jail felony. See TEX. HEALTH & SAFETY

CODE ANN. §§ 481.103, 481.113, 481.116 (West, Westlaw through 2017 1st C.S.).

Pursuant to a plea agreement, appellant pleaded guilty to the lesser included offense of

possession of a controlled substance, and the trial court adjudicated him guilty of the

offense. See id. §§ 481.103, 481.116. On November 25, 2014, the trial court assessed

punishment at two years’ imprisonment, a $750 fine, and $180 in restitution; however, the

trial court suspended appellant’s two-year sentence and imposed three years of

community supervision. See TEX. CODE CRIM. PROC. ANN. art. 42A.053 (West, Westlaw

through 2017 1st C.S.).

       On February 6, 2017, the State filed a motion to revoke appellant’s community

supervision, alleging twenty violations. On April 4, 2017, the trial court held a hearing on

the motion to revoke, and appellant pleaded true to all twenty violation allegations. The

trial court inquired if the State had any recommendation as to the disposition, and the

State recommended two actions: (1) to sanction appellant to a Substance Abuse Felony

Punishment Facility and extend his probation for two years; or (2) to revoke appellant’s

community supervision and sentence him to eighteen months in a state jail facility.

       Appellant was then sworn in and provided the following testimony:

       Defense counsel:     And what are you asking the Court to do here today?

       Appellant:           To—

       Defense counsel:     Are you asking that your probation be revoked and that
                            you be sentenced to state jail?

       Appellant:           Yes, ma’am.

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       Defense counsel:      You realize, as the Court explained earlier, you could
                             be sentenced up to two years—

       Appellant:            Yes ma’am

       Defense counsel:      —in state jail?

       Appellant:            Yes ma’am.

       Defense counsel:      However, we are joining with the prosecutor in asking
                             the Court to consider a term of 18 months; is that right?

       Appellant:            Or less, yes, ma’am.

       The trial court found that appellant had violated the conditions of his community

supervision, revoked his community supervision, and sentenced him to two years’

imprisonment in a state jail facility. Appellant neither objected to the sentence imposed

by the trial court nor filed a motion for new trial challenging his sentence. This appeal

followed.

                                II.   STANDARD OF REVIEW

       We review the trial court’s order revoking community supervision for an abuse of

discretion. Hacker v. State, 389 S.W.3d 860, 865 (Tex. Crim. App. 2013). The test for

abuse of discretion is not whether, in the opinion of the appellate court, the facts present

a suitable case for the trial court’s action, but rather, whether the trial court acted without

reference to any guiding rules or principles. State v. Thomas, 428 S.W.3d 99, 103 (Tex.

Crim. App. 2014). “After a defendant is placed on community supervision, it can be

revoked based on a sole violation of a condition of that supervision.” Ex parte Lea, 505

S.W.3d 913, 915 (Tex. Crim. App. 2016).

       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


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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). 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.   DISCUSSION

       By his sole issue, appellant argues that the trial court’s two-year sentence is

excessive.

A.     Preservation

       For an issue to be preserved on appeal, there must be a timely objection that

specifically states the legal basis for the objection. TEX. R. APP. P. 33.1(a); see Layton v.

State, 280 S.W.3d 235, 238–39 (Tex. Crim. App. 2009). Additionally, when the sentence

imposed is within the punishment range and not illegal, the failure to specifically object in

open court or in a post-trial motion waives any error on appeal. See Noland v. State, 264

S.W.3d 144, 151 (Tex. App.—Houston [1st Dist.] 2007, pet. ref’d); Trevino, 174 S.W.3d

at 927–28. Here, appellant did not object to the sentence imposed by the trial court on

any grounds, nor did he challenge the sentence with a post-trial motion. Thus, appellant

has forfeited his complaint on appeal, and we conclude this issue has been waived. See

TEX. R. APP. P. 33.1(a).

B.     Sentence is Not Excessive



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       Even if appellant had preserved error, his sentence of two years in a state jail

facility for possession of a controlled substance of less than one gram falls within the legal

range set down by the state legislature for that offense, albeit at the top of the punishment

range authorized by statute for the offense. See TEX. HEALTH & SAFETY CODE ANN. §§

481.103, 481.116; 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). Thus, appellant’s

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).

       Appellant also argues that the trial court’s sentence was disproportional under the

facts of the case and cites to the United States Supreme Court decision in Solem v. Helm.

See 463 U.S. 288 (1983). We disagree.

       We note that an individual’s sentence may constitute cruel and unusual

punishment, despite falling within the statutory range, if it is grossly disproportionate to

the offense. See id. at 287. 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

id. 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



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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, 216

(5th Cir. 1992); Dale v. State, 170 S.W.3d 797, 800 (Tex. App.—Fort Worth 2005, no

pet)); see also TEX. R. APP. P. 47.1.

        However, 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 Supreme Court’s decision in Harmelin v. Michigan, 501 U.S. 957 . . . (1991).” Trevino,

174 S.W.3d at 928 (citing McGruder, 954 F.2d at 315–16); 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 appellant 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.

        Relying on Solem, appellant argues that the trial court’s two-year sentence is

excessive because he pleaded true to all the violation allegations and took responsibility

for his actions in open court. Appellant also argues that the maximum sentence was not

warranted because he suffers from a drug addiction and because he completed a

treatment program at an intermediate sanction facility and a relapse prevention program

while on community supervision.1 We are not persuaded by appellant’s argument.


         1 Out of the twenty community-supervision violations to which appellant pleaded “true”, there were

five violations that were unrelated to drug use. 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 on a sole violation of a
condition of that supervision.”).

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        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). Here,

the record establishes that appellant committed the offense of possession of a controlled

substance (methamphetamine) in an amount less than one gram. See TEX. HEALTH &

SAFETY CODE ANN. §§ 481.103, 481.116. Upon his guilty plea, the trial court placed

appellant on community supervision for three years.

        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 appellant’s offense of possession of a controlled substance—a serious drug

offense.2 See Alvarez v. State, 525 S.W.3d 890, 893 (Tex. App.—Eastland 2017, pet.

ref’d); Sneed, 406 S.W.3d at 643; Francis v. State, 877 S.W.2d 441, 443–44 (Tex. App.—

Austin 1994, pet. ref’d). 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. Therefore, we reject this argument.

        Even if appellant had 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; Gutierrez, 108 S.W.3d 609–

10. We overrule appellant’s sole issue.




         2 Having concluded that appellant’s sentence was not grossly disproportionate to the possession-

of-a-controlled-substance offense, we need not consider the remaining Solem factors. See Sneed v. State,
406 S.W.3d 638, 643 (Tex. App.—Eastland 2013, no pet.). Further, appellant did not discuss the second
and third Solem factors in his brief. See TEX. R. APP. P. 38.1(i).

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                                  IV.    CONCLUSION

       We affirm the trial court’s judgment.

                                                      DORI CONTRERAS
                                                      Justice

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


Delivered and filed the
19th day of April, 2018.




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