Affirmed and Memorandum Opinion filed January 8, 2013.




                                     In The

                    Fourteenth Court of Appeals

                             NO. 14-12-00500-CR


               JOSSUE DANIEL GARCIA-LOPEZ, Appellant
                                       V.

                      THE STATE OF TEXAS, Appellee


                   On Appeal from the 209th District Court
                           Harris County, Texas
                       Trial Court Cause No. 1334729


                MEMORANDUM                     OPINION


      Appellant Jossue Daniel Garcia-Lopez appeals his conviction for sexual
assault of a child under fourteen years of age.      See Tex. Penal Code Ann.
§22.021(a)(1)(B)(i). In two issues he contends his seven-year prison sentence is
grossly disproportionate to the crime committed. We affirm.

      Appellant entered a plea of guilty and requested that the trial court assess
punishment. After completion of a presentence investigation (PSI) report, the trial
court held a hearing on punishment.

      At the hearing, the trial court stated it had received the PSI report, read it,
and read three additional letters in support of appellant.      Both the State and
appellant had reviewed the PSI report and had no objections. No other evidence
was admitted.    After arguments of counsel, the court sentenced appellant as
follows:

      Jossue Garcia-Lopez, on your plea of guilty and the evidence
      introduced therein, the Court finds you guilty of the offense of
      aggravated sexual assault of a child under the age of 14 years and
      assesses your punishment at seven years confinement in the Texas
      Department of Corrections.
      Do you have anything to say before sentence of the law is pronounced
      against you?
      THE DEFENDANT: I can’t sign for seven years.
      THE COURT: You are going to have to. Do you anything further to
      say?
      THE DEFENDANT: No, sir.

      On appeal, in two issues, appellant contends the trial court erred by
assessing a punishment that is grossly disproportionate to the crime committed in
violation of the Eighth Amendment to the United States Constitution and article I,
section 13 of the Texas Constitution.          Appellant claims his sentence is
disproportionate to the crime given his lack of a significant criminal history.
Appellant, however, failed to preserve his complaint of a disproportionate sentence
for review.

      To preserve purported sentencing error for appellate review, a defendant
must raise the complaint by objecting to his sentence during the trial’s punishment
phase or by later filing a motion for new trial. See Tex R. App. P. 33.1; see also

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Mercado v. State, 718 S.W.2d 291, 296 (Tex. Crim. App. 1986); Noland v. State,
264 S.W.3d 144, 151–52 (Tex. App.—Houston [1st Dist.] 2007, pet. ref’d)
(holding that when appellant failed to object to his sentence at the punishment
hearing or to complain about it in his motion for new trial, he failed to preserve his
Eighth Amendment complaint that the punishment assessed was “grossly
disproportionate and oppressive”).

      In this case, appellant did not object to the pronouncement of his sentence at
the conclusion of his punishment hearing, nor did he raise the claim in a motion for
new trial. Appellant claims that his statement he could not “sign for seven years”
constitutes an objection based on the proportionality of his sentence. An appellant
must present to the trial court a timely, specific objection and obtain an adverse
ruling to preserve for appeal his complaints concerning cruel and unusual
punishment. Benson v. State, 224 S.W.3d 485, 498 (Tex. App.—Houston [1st
Dist.] 2007, no pet.). Other than appellant’s statement, no objection was made, nor
was evidence admitted as to how the seven-year sentence was disproportionate to
the crime committed. Because appellant did not present a specific objection to his
sentence or obtain an adverse ruling, appellant presents nothing for review on
appeal.

      Waiver notwithstanding, appellant has not shown that his sentence was
grossly disproportionate to the offense for which he was convicted. Although a
sentence may be within the range permitted by statute, it may nonetheless run afoul
of the Eighth Amendment prohibition against cruel and usual punishment. Solem
v. Helm, 463 U.S. 277, 290 (1983). Only if we infer that the sentence is grossly
disproportionate to the offense will we then consider the remaining factors of the
Solem test and compare the sentence received to (1) sentences for similar crimes in
the same jurisdiction, and (2) sentences for the same crime in other jurisdictions.

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Baldridge v. State, 77 S.W.3d 890, 893 (Tex. App.—Houston [14th Dist.] 2002,
pet. ref’d). The constitutional principal of the Eighth Amendment is tempered,
however, by the corollary proposition that the determination of prison sentences is
a legislative prerogative that is primarily within the province of the legislatures, not
the courts. Rummel v. Estelle, 445 U.S. 263, 274–76 (1980).

      In first considering whether appellant’s sentence is grossly disproportionate
to the offense, it should be noted that not only is appellant’s sentence within the
range of punishment prescribed by the legislature for the offense of sexual assault
of a child, but it is also near the minimum sentence that can be assessed for this
offense.   Sexual assault of a child is a first degree felony punishable by
confinement of five to ninety-nine years or life in prison. Tex. Penal Code Ann. §§
22.021(a)(1)(B)(i) & 12.32. This is not an oppressive sentence for conviction of
sexual assault of a child under fourteen years old. Because appellant’s seven-year
sentence is not grossly disproportionate to the offense, we will not consider the
remaining Solem factors. We overrule appellant’s two issues.

      The judgment of the trial court is affirmed.



                                                PER CURIAM



Panel consists of Chief Justice Hedges and Justices Brown and Busby.
Do Not Publish — TEX. R. APP. P. 47.2(b).




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