                         COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                                NO. 02-10-00171-CR


JOSEPH E. PHILLIPS                                                  APPELLANT

                                         V.

THE STATE OF TEXAS                                                       STATE


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          FROM THE 213TH DISTRICT COURT OF TARRANT COUNTY

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                        MEMORANDUM OPINION1
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      Appellant Joseph E. Phillips appeals his thirty-year prison sentence

imposed upon his open plea of guilty to one count of aggravated sexual assault

of a child after the State waived twenty-four counts of the same charge contained

in the indictment. We affirm.




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       See Tex. R. App. P. 47.4.
      The evidence shows that Appellant sexually assaulted his biological

daughter over a period of years, beginning when she was twelve years old, and

that the abuse resulted in her giving birth to two children. Appellant complains on

appeal that he was probation eligible and that his thirty-year sentence is

disproportionate to the offense and thus cruel and unusual.

      A complaint that a sentence is unconstitutionally excessive must be

preserved by objection or motion for new trial. See Curry v. State, 910 S.W.2d

490, 497 (Tex. Crim. App. 1995) (reasoning that even constitutional rights,

including the right to be free from cruel and unusual punishment may be

forfeited). The record shows that Appellant undertook neither of these measures

to preserve his complaint. He has, therefore, failed to preserve his complaint for

review. Tex. R. App. P. 33.1(a).

      But even if Appellant had preserved his claim, we would hold that his

sentence is not disproportionate to the offense. In assessing proportionality, we

first make a threshold comparison of the offense against the severity of the

sentence. Moore v. State, 54 S.W.3d 529, 542 (Tex. App.––Fort Worth, 2001,

pet. ref’d) (citing Solem v. Helm, 463 U.S. 277, 291–92, 103 S. Ct. 3001, 3010;

McGruder v. Puckett, 954 F.2d 313, 316 (5th Cir.) 1992). Only if we determine

that the sentence is grossly disproportionate to the offense do we need to

consider whether the sentence is comparable to sentences imposed upon other

criminals in the same jurisdiction and sentences imposed for commission of the

same crime in other jurisdictions. Moore, 54 S.W.3d at 542; and see McGruder,


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954 F.2d at 316; Culton v. State, 95 S.W.3d 401, 403 (Tex. App.––Houston [1st

Dist] 2002, pet. ref’d).

      In making our threshold inquiry, we judge the gravity of the offense in light

of the harm caused or threatened to the victim or society, and the culpability of

the offender. Solem, 463 U.S. at 291–92, 103 S. Ct. at 3010; Moore, 54 S.W.3d

at 542. Here, Appellant pleaded guilty to aggravated sexual assault of a child, a

first degree felony. Tex. Penal Code Ann. § 22.021(e) (Vernon Supp. 2010).

Thus, the offense committed by Appellant is classified as within the second most

serious category of offenses in Texas, capital offenses being the most serious.

The harm to the victim and to society is great. The range for a first degree felony

is five years to 99 years or life in prison with a $10,000 fine.       Id. § 12.32.

Appellant was sentenced to only thirty years for repeatedly raping his own

daughter and fathering his own two grandchildren. His punishment is neither

excessive nor grossly disproportionate. See Palmer v. State, No. 02-02-00040-

CR, 2003 WL 1948697, at *3 (Tex. App.––Fort Worth Apr. 24, 2003, no pet.)

(mem. op., not designated for publication) (holding fifty-year sentence for

aggravated sexual assault of defendant’s own child not excessive).

      Further, Appellant contends that the trial court abused its discretion by

sentencing him to thirty years and that the imposition of that sentence is too

severe in light of the complainant and her mother asking that Appellant receive

probation. In general, when the sentence imposed is within the proper range of

punishment, the trial court has a great deal of discretion and the sentence will not


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be disturbed on appeal. See Jackson v. State, 680 S.W.2d 809, 814 (Tex. Crim.

App. 1984). The trial court did not abuse its discretion based on the facts and

evidence in this case. We overrule Appellant’s complaint and affirm the trial

court’s judgment.



                                                LEE GABRIEL
                                                JUSTICE

PANEL: GARDNER, WALKER, and GABRIEL, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: March 17, 2011




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