Opinion filed September 2, 2010




                                           In The


   Eleventh Court of Appeals
                                         __________

                                   No. 11-10-00070-CR
                                       __________

                      ERIK LEONARD PITCHER, Appellant

                                               V.

                             STATE OF TEXAS, Appellee


                          On Appeal from the 104th District Court
                                  Taylor County, Texas
                              Trial Court Cause No. 17191B


                           MEMORANDUM OPINION

       Erik Leonard Pitcher entered an open plea of guilty to the offense of aggravated sexual
assault of a child. The trial court convicted him of the offense and sentenced him to confinement
in the Institutional Division of the Texas Department of Criminal Justice for a term of seventy-
five years. Appellant challenges his punishment in a single issue. He contends that his lengthy
prison sentence constitutes cruel and unusual punishment. We affirm.
                                       Background Facts
       Appellant executed a written stipulation of evidence in which he judicially confessed to
intentionally and knowingly causing his male sexual organ to penetrate the female sexual organ
of his four-year-old biological daughter. After considering the oral testimony of witnesses and
watching appellant’s video confession, the trial court sentenced him to a term of confinement of
seventy-five years.
                                                            Analysis
         Appellant contends that the punishment assessed by the trial court is cruel and unusual
based upon the nature of the crime he committed and his lack of a prior criminal history. He
supports his contention by asserting that he showed remorse for his crime from the outset and
that he has been a productive member of society for most of his life. He also points out that he
did not attempt to evade arrest and that he readily confessed to the crime when confronted with
it.
         The State contends that appellant did not preserve his complaint for appellate review.
We agree. Appellant did not object to his sentence at the time of sentencing. Appellant also did
not allege an Eight Amendment violation in his motion for new trial.1 Therefore, his issue on
appeal has not been preserved for review. Wynn v. State, 219 S.W.3d 54, 61 (Tex. App.—
Houston [1st Dist.] 2006, no pet.); Hergert v. State, 197 S.W.3d 394, 399 (Tex. App.—
Beaumont 2006, no pet.); Castaneda v. State, 135 S.W.3d 719, 723 (Tex. App.—Dallas 2003, no
pet.).
         Even if appellant had preserved his complaint, he could not succeed on his claim. The
Eighth Amendment prohibits punishment that is “grossly disproportionate” to the offense for
which a defendant has been convicted. See Harmelin v. Michigan, 501 U.S. 957, 1001 (1991)
(Kennedy, J., concurring); Solem v. Helm, 463 U.S. 277, 288-90 (1983); McGruder v. Puckett,
954 F.2d 313, 315-16 (5th Cir. 1992); Bradfield v. State, 42 S.W.3d 350, 353 (Tex. App.—
Eastland 2001, pet. ref’d). In determining whether a sentence is grossly disproportionate to the
offense committed, the reviewing court must first compare the gravity of the offense with the
severity of the sentence. McGruder, 954 F.2d at 316; Bradfield, 42 S.W.3d at 353. We judge
the gravity of the offense in light of the harm caused or threatened to society and the offender’s
culpability. Moore v. State, 54 S.W.3d 529, 542 (Tex. App.—Fort Worth 2001, pet. ref’d).
         The Texas Legislature has indicated a strong desire to harshly punish those who commit
aggravated sexual assault by making the offense a first degree felony. TEX. PENAL CODE ANN.
§ 22.021(e) (Vernon Supp. 2009). Furthermore, the legislature has established a minimum term


         1
             Appellant only alleged that “the verdict in this cause is contrary to the law and the evidence” in his motion for new
trial.

                                                                 2
of imprisonment of twenty-five years when the victim of the aggravated sexual assault is
younger than six years of age. TEX. PENAL CODE ANN. § 22.021(f) (Vernon Supp. 2009). We
conclude that the gravity of appellant’s offense is not grossly disproportionate to the severity of
his sentence. Irrespective of the fact that appellant does not have any prior convictions, the
gravity of the offense he committed against his four-year-old biological daughter was extreme
and heinous. In this regard, the victim’s counselor testified that she will likely have major issues
in her life because the perpetrator of her assault was someone who was supposed to be her
protector. Therefore, under the applicable case law, we do not compare appellant’s sentence to
sentences received for similar crimes in the same jurisdiction and sentences received for the
same crime in other jurisdictions. McGruder, 954 F.2d at 316; Bradfield, 42 S.W.3d at 353-54.
Appellant’s sole issue is overruled.
                                       This Court’s Ruling
        The judgment of the trial court is affirmed.




                                                             TERRY McCALL
                                                             JUSTICE


September 2, 2010
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
McCall, J., and Strange, J.




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