Affirmed and Memorandum Opinion filed August 2, 2012.




                                         In The

                      Fourteenth Court of Appeals

                                 NO. 14-11-00929-CR

                           GREGORY HEARN, Appellant

                                           V.

                          THE STATE OF TEXAS, Appellee


                       On Appeal from the 185th District Court
                                Harris County, Texas
                           Trial Court Cause No. 1296471


                  MEMORANDUM                        OPINION


      Appellant Gregory Hearn appeals his conviction for assault of a family member
and impeding breathing. See Tex. Penal Code Ann. § 22.01(b)(2)(B). In a single issue
he contends his six-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. The complainant, appellant’s former girlfriend, testified that on the night of
the offense appellant went out for drinks with a friend. When he returned home, she was
asleep in the same bed as her grandchild. Appellant and the complainant began arguing
and physically fighting with each other. Appellant grabbed the complainant’s neck and
she fell on to the bed. As she lay on the bed, appellant held both hands around her neck
in an attempt to choke her. As she stood up from the bed, appellant came toward her
again, and the complainant reached for a knife to defend herself. The complainant’s son
heard the noise and came into the room to stop the fight.

         The complainant testified that she previously had been a victim of assault by
appellant in 2009, and that there were other instances of violence unreported to
authorities. After hearing testimony from appellant’s family members, the court assessed
appellant’s sentence at six years in prison.

         Appellant was indicted for the offense of assault of a family member second
offender and impeding breathing enhanced with a prior conviction for felony assault
committed against a family member. Appellant was properly admonished, both orally
and in writing, that the range of punishment was for “a term of life or any term of not
more than 99 years or less than 5 years in the Institutional Division of the Texas
Department of Criminal Justice.” See Tex. Code Crim. Proc. Ann. arts. 12.32, 12.42, &
22.01.

         The court sentenced appellant as follows:

         Please stand, Mr. Hearn. Gregory Hearn, based on your plea of guilty, the
         Court is going to find you guilty and assess your punishment at 6 years in
         the Institutional Division of the Texas Department of Criminal Justice. Do
         you have anything to say, sir, as to why sentence should not now be
         pronounced against you?
         THE DEFENDANT: No, ma’am.

         On appeal, in a single issue, appellant contends the trial court erred by assessing a
punishment that is grossly disproportionate to the crime committed. Appellant claims his
sentence is disproportionate to the crime because he received minimum sentences in his
two prior assault convictions, the complainant in this case fought back and cut appellant
with a knife and left an embarrassing voicemail greeting on appellant’s phone after he

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was arrested, and appellant admitted his crime. 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 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.
Accordingly, 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. 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

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punishment prescribed by the legislature for habitual felony offenders, but it is also near
the minimum sentence that can be assessed for this offense. This is not an oppressive
sentence for conviction of a third assault on a family member. Because appellant’s six-
year sentence is not grossly disproportionate to the offense, we will not consider the
remaining Solem factors. We overrule appellant’s sole issue.

       The judgment of the trial court is affirmed.




                                                 PER CURIAM



Panel consists of Justices Boyce, Christopher, and Jamison.
Do Not Publish — TEX. R. APP. P. 47.2(b).




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