Opinion filed July 27, 2017




                                         In The


           Eleventh Court of Appeals
                                      __________

                                No. 11-16-00176-CR
                                    __________

                   JOE ANTHONY ALVAREZ, Appellant
                                            V.
                      THE STATE OF TEXAS, Appellee


                      On Appeal from the 104th District Court
                              Taylor County, Texas
                          Trial Court Cause No. 19636B


                                      OPINION
       Joe Anthony Alvarez pleaded guilty to the first-degree felony offense of
possession of a controlled substance, methamphetamine, with intent to deliver.1 The
trial court assessed punishment at confinement for forty years and sentenced him.




       1
        TEX. HEALTH & SAFETY CODE ANN. § 481.112 (West 2017).
In a single issue on appeal, Appellant asserts that the trial court violated his Eighth
Amendment right to be free of cruel and unusual punishment. We affirm.
                                 I. Background Facts
      Appellant entered into a “charge bargain” at trial where he pleaded guilty in
return for three other charges being dismissed once he was sentenced in this cause.
The trial court ordered a presentence investigation report and conducted a
disposition hearing. At the disposition hearing, the trial court heard evidence about
the three cases concurrently charged against him, which included forgery, assault
family violence, and the burglary of a home where the owner and her small child
were present.
      Appellant admitted he was on methamphetamine the day law enforcement
arrested him for possession with intent to sell methamphetamine, as well as during
past incidents with police. During a routine traffic stop, a law enforcement K-9 unit
discovered methamphetamine in Appellant’s glove compartment. Officers also
discovered three cell phones and a number of small square baggies in the vehicle.
The trial court heard testimony about Appellant’s criminal history, including
(1) possession of marihuana, (2) a disorderly conduct charge, and (3) a prohibited
weapons charge. Appellant had a past revocation of probation due to a positive
urinalysis test for methamphetamine, cocaine, and amphetamines and his failure to
report. Having considered all the evidence, the trial court assessed a sentence of
confinement for forty years.
                                II. Standard of Review
      When we review a trial court’s sentencing determination, “a great deal of
discretion is allowed the sentencing judge.” Jackson v. State, 680 S.W.2d 809, 814
(Tex. Crim. App. 1984). We will not disturb a trial court’s decision as to punishment
absent a showing of abuse of discretion and harm. Id. When a sentence falls within
the statutory range of punishment, it is generally not “excessive, cruel, or unusual.”
                                           2
State v. Simpson, 488 S.W.3d 318, 323 (Tex. Crim. App. 2016). The statutory range
of punishment for a first-degree felony is confinement for not more than ninety-nine
years or less than five years, or life.2 The trial court may also assess a fine of up to
$10,000.3
      We note that a very narrow exception exists and that an individual’s sentence
may constitute cruel and unusual punishment, despite falling within the statutory
range, if it is grossly disproportionate to the offense. Solem v. Helm, 463 U.S. 277,
287 (1983). The Eighth Amendment prohibits grossly disproportionate sentences
for an offense. Bradfield v. State, 42 S.W.3d 350, 353 (Tex. App.—Eastland 2001,
pet. ref’d) (citing Harmelin v. Michigan, 501 U.S. 957 (1991)). However, “[o]utside
the context of capital punishment, successful challenges to the proportionality of
particular sentences [will be] exceedingly rare.”       Solem, 463 U.S. at 289–90
(alterations in original) (quoting Rummel v. Estelle, 445 U.S. 263, 272 (1980)).
                                        III. Analysis
      On appeal, Appellant asserts that the trial court violated his right to be free
from cruel and unusual punishment, as defined by the Eighth Amendment of the
United States Constitution.4       He argues that the trial court violated evolving
standards of decency when it sentenced him to confinement for forty years.
Appellant contends that, especially in light of the State’s failure to prove he caused
physical injury to anyone, the offense, coupled with Appellant’s other acts, did not
warrant that sentence. In response, the State asserts that Appellant’s sentence was
not cruel or unusual because of his offending history and because the range of




      2
       TEX. PENAL CODE ANN. § 12.32(a) (West 2011).
      3
       Id. § 12.32(b).
      4
       U.S. CONST. amend. VIII.

                                              3
punishment for a first-degree felony is imprisonment for five to ninety-nine years or
life.5
         We note at the outset that Appellant made no objection to his sentence in the
trial court, either at the time of disposition or in any posttrial motion. Appellant did
not lodge an objection, under constitutional or other grounds, to the alleged disparity,
cruelty, unusualness, or excessiveness of the sentence. To preserve an 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).
Therefore, Appellant has failed to preserve error and has waived his complaint on
appeal. See id.; Curry v. State, 910 S.W.2d 490, 497 (Tex. Crim. App. 1995) (Eighth
Amendment issues are forfeited if not raised in the trial court.); Solis v. State, 945
S.W.2d 300, 301 (Tex. App.—Houston [1st Dist.] 1997, pet. ref’d) (holding that a
claim of grossly disproportionate sentence in violation of Eighth Amendment was
forfeited by failure to object).
         But even if we are incorrect on the issue of forfeiture, Appellant’s claim of
cruel and unusual punishment still fails because his sentence was not cruel or
unusual. In this case, the trial court assessed a sentence that was within the statutory
range. Nonetheless, if the sentence is grossly disproportionate to the offense or
sentences in other similar offenses, the sentence may violate the Eighth Amendment.
See Bradfield, 42 S.W.3d at 353. To evaluate the proportionality of a sentence, the
first step is for us to make a threshold comparison between the gravity of the offense
and the severity of the sentence. Id. When we analyze the gravity of the offense,
we examine the harm caused or threatened to the victim or society and the culpability
of the offender. See, e.g., Hooper v. State, No. 11-10-00284-CR, 2011 WL 3855190,
at *3 (Tex. App.—Eastland Aug. 31, 2011, pet. ref’d) (mem. op., not designated for


         5
          See PENAL § 12.32(a).

                                           4
publication) (citing Solem, 463 U.S. at 291–92). We also consider the sentence
imposed in light of the offender’s prior adjudicated and unadjudicated offenses.
Culton v. State, 95 S.W.3d 401, 403 (Tex. App.—Houston [1st Dist.] 2002, pet.
ref’d); see McGruder v. Puckett, 954 F.2d 313, 316 (5th Cir. 1992). Only if grossly
disproportionate to the offense, must we then compare Appellant’s sentence with the
sentences received for similar crimes in this jurisdiction or sentences received in
other jurisdictions. Bradfield, 42 S.W.3d at 353–54.
      In this case, Appellant pleaded guilty to possession of a controlled substance,
forty-two grams of methamphetamine, with intent to deliver, and he agreed that the
drug world was violent and dangerous. The offense is a serious offense. Sneed v.
State, 406 S.W.3d 638, 643 (Tex. App.—Eastland 2013, no pet.). During the
disposition hearing, the trial court heard testimony regarding Appellant’s
commission of the offenses of burglary of a habitation, forgery, and assault family
violence. The trial court heard testimony about how Appellant had been granted
community supervision for felony possession of a controlled substance, violated the
conditions of his community supervision, spent time in state jail and was released,
committed additional offenses and was arrested again, and reoffended upon
subsequent release on bond. The trial court also heard about Appellant’s belligerent
and violent behavior, which had grown increasingly worse, as well as his drug
problems and domestic violence. The trial court also heard arguments from counsel
and reviewed the presentence investigation report before it made its decision. We
have reviewed the record, and we find nothing in it to indicate that Appellant’s
sentence was grossly disproportionate to his offense.       Based on the evidence
presented, the trial court did not abuse its discretion when it sentenced Appellant to
confinement for forty years. We hold that Appellant’s sentence does not constitute
cruel and unusual punishment. See Luttrell v. State, No. 11-13-00327-CR, 2015 WL


                                          5
5602365, at *2 (Tex. App.—Eastland Sept. 17, 2015, no pet.) (mem. op., not
designated for publication). We overrule Appellant’s sole issue on appeal.
                               IV. This Court’s Ruling
      We affirm the judgment of the trial court.




                                             MIKE WILLSON
                                             JUSTICE


July 27, 2017
Publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.




                                         6
