                 NUMBERS 13-07-737-CR and 13-07-738-CR

                             COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                    CORPUS CHRISTI - EDINBURG


ANGELITA TREVINO,                                                             Appellant,

                                            v.

THE STATE OF TEXAS,                                                            Appellee.


                    On appeal from the 94th District Court
                          of Nueces County, Texas


                          MEMORANDUM OPINION

                 Before Justices Rodriguez, Garza, and Vela
                   Memorandum Opinion by Justice Vela

       Appellant, Angelita Trevino, was convicted on two counts of aggravated sexual

assault of a child. See TEX . PENAL CODE ANN . § 22.021(a). She now appeals the trial

court’s imposition of two concurrent ten-year sentences in the Institutional Division of the

Texas Department of Criminal Justice, claiming the sentences are disproportionate to the

seriousness of the offenses. We affirm.
                                       I. Background

      Trevino pleaded guilty to two counts of aggravated sexual assault of a child. See

TEX . PENAL CODE ANN . § 22.021(a) (Vernon Supp. 2007).             The trial court deferred

adjudication of guilt and placed her on ten years’ community supervision. On September

27, 2007, Trevino was indicted for failure to comply with the sex-offender registration

requirements. See TEX . CODE    OF   CRIM . PROC . ANN . art. 62.102(a) (Vernon 2006). The

State filed a motion to revoke Trevino’s community supervision, alleging she violated her

community supervision by failing to: (1) register as a sex offender; (2) report to her

community-supervision officer; (3) pay fines and fees; and (4) participate in sex-offender

treatment programs. On November 30, 2007, Trevino pleaded guilty to the indictment, and

she pleaded true to the allegations that she had violated conditions of her community

supervision. The trial court sentenced her to two concurrent sentences of ten years’

confinement in the Institutional Division of the Texas Department of Criminal Justice.

                                       II. Discussion

      By one issue, Trevino contends the punishment was disproportionate to the

seriousness of the offense, in violation of the Eighth and Fourteenth Amendments to the

United States Constitution.     See U.S. CONST . amends VIII and XIV.             The Eighth

Amendment 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

Robinson v. California, 370 U.S. 660, 675 (1962). The Eighth Amendment is applicable

to punishments imposed by state courts through the Due Process Clause of the Fourteenth

Amendment. Robinson, 370 U.S. at 675.

      Trevino did not object to her sentence in the trial court. Additionally, she did not file

any post-trial motions or objections complaining that her sentence was either
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disproportionate to the seriousness of the offense, or complaining about the disparity,

cruelty, unusualness or excessiveness of the sentence.

       To preserve error for appellate review, a party must present a timely objection to the

trial court, state the specific grounds for the objection, and obtain a ruling. TEX . R. APP. P.

33.1(a); Dixon v. State, 2 S.W.3d 263, 265 (Tex. Crim. App. 1998). The failure to

specifically object to an alleged disproportionate sentence in the trial court or in a post-trial

motion waives any error for our review. Jacoby v. State, 227 S.W.3d 128, 130 (Tex.

App.–Houston [1st Dist.] 2006, pet. ref’d); see, e.g., Nicholas v. State, 56 S.W.3d 760, 768

(Tex. App.–Houston [14th Dist.] 2001, pet. ref'd) (failure to complain to trial court about

consecutive sentencing waived error); Solis v. State, 945 S.W.2d 300, 301-02 (Tex.

App.–Houston [1st Dist.] 1997, pet. ref'd) (holding that a claim of a grossly disproportionate

sentence violative of Eighth Amendment was forfeited by failure to object). Here, Trevino

neither objected to the alleged disproportionality of the sentence in the trial court, nor

raised the issue in a post-trial motion; she is raising it for the first time on appeal. Her

argument, therefore, is not preserved for review. See TEX . R. APP. P. 33.1(a); Jacoby, 227

S.W.3d at 130.

       Even assuming Trevino preserved the complaint, we note that her ten-year

sentences were within the statutorily prescribed punishment range. Trevino pleaded guilty

to the charge of failure to comply with sex-offender registration requirements, a third-

degree felony. See TEX . CODE CRIM . PROC . ANN . art. 62.102(b)(2). Punishment for a third-

degree felony is imprisonment for a term of not more than ten years or less than two years,

and a fine not to exceed $10,000. TEX . PENAL CODE ANN . § 12.34 (Vernon 2003). Trevino

also was adjudicated guilty of two counts of aggravated sexual assault of a child, a first-

degree felony. Id. § 22.021(e). Punishment for a first-degree felony is imprisonment from
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five to ninety-nine years or life, and a fine not to exceed $10,000. Id. § 12.32 (Vernon

2003). Punishment assessed within the statutory limits is generally not cruel and unusual

punishment. Samuel v. State, 477 S.W.2d 611, 614 (Tex. Crim. App. 1972); Swinney v.

State, 828 S.W.2d 254, 259 (Tex. App.–Houston [1st Dist.] 1992, no pet.).

       Trevino asks this Court to apply the Solem proportionate analysis test to her

sentence. See Solem v. Helm, 463 U.S. 277, 290-92 (1983). This Court has recognized

that "the viability and mode of application of proportionate analysis . . . has been

questioned since the Supreme Court's decision in Harmelin v. Michigan, 501 U.S. 957

(1991)." Trevino v. State, 174 S.W.3d 925, 928 (Tex. App.–Corpus Christi 2005, pet. ref'd)

(citing McGruder v. Puckett, 954 F.2d 313, 315-16 (5th Cir. 1992) (discussing the various

opinions issued in Harmelin, and their impact on the Solem decision)); see Sullivan v.

State, 975 S.W.2d 755, 757-58 (Tex. App.–Corpus Christi 1998, no pet.) (discussing the

implications of the Harmelin opinion and reviewing the proportionality of appellant's

sentence under the Solem and McGruder tests). Assuming, arguendo, the viability of a

proportionality review, as we did in Sullivan, we will apply both the Solem and McGruder

tests to the facts of this case. See Sullivan, 975 S.W.2d at 757-58; McGiffin v. State, No.

13-05-561-CR, 2006 WL 2294553, *1 (Tex. App.–Corpus Christi, August 10, 2006, no pet.)

(mem. op.) (not designated for publication). In both Solem and McGruder, we look first at

the gravity of the offense and the harshness of the penalty. Solem, 463 U.S. at 290-91;

McGruder, 954 F.2d at 316.

1. Gravity of the Offenses

       Trevino pleaded guilty to two counts of aggravated sexual assault of a child. Both

offenses are first-degree felonies. The trial court placed her on community supervision for


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these offenses. She violated the terms and conditions of her community supervision by,

among other things, failing to register as a sex offender, a third-degree felony. She

pleaded guilty to that offense, and she pleaded true to the allegations she violated the

terms and conditions of her community supervision.

2. Harshness of the Penalties

       Based upon the seriousness of Trevino’s convictions for aggravated sexual assault

of a child, her failure to register as a sex offender, and the punishment ranges available,

we conclude Trevino's sentences are not grossly disproportionate to her crimes. This

finding ends our analysis under McGruder. See McGruder, 954 F.2d at 316; see also

Sullivan, 975 S.W.2d at 757. Because there is no evidence in the appellate record of the

sentences imposed for other crimes in Texas or for the same crimes in other jurisdictions,

we may not perform a comparative evaluation using the remaining Solem factors. See

Solem, 463 U.S. at 292; see also Sullivan, 975 S.W.2d at 757-58. Therefore, we conclude

that Trevino's sentences are neither grossly disproportionate nor cruel and unusual. The

issue is overruled.

       The trial court's judgments are affirmed.




                                                   ROSE VELA
                                                   Justice


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

Memorandum Opinion delivered and
filed this 3rd day of July, 2008.
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