Opinion filed October 27, 2011




                                             In The


   Eleventh Court of Appeals
                                          __________

                                     No. 11-10-00006-CR
                                         __________

                      BRANDON JAMES SEIFRIED, Appellant

                                                V.

                                 STATE OF TEXAS, Appellee


                           On Appeal from the 104th District Court

                                      Taylor County, Texas

                                  Trial Court Cause No. 17327B


                            MEMORANDUM OPINION
       Brandon James Seifried was convicted of engaging in organized criminal activity by
committing burglary of a habitation. Appellant waived trial by jury and entered an open plea of
guilty. At the sentencing hearing, the trial court considered the presentence investigation (PSI)
report and testimony. At the conclusion of the hearing, Appellant’s request for community
supervision was denied, and he was sentenced to fifteen years in the Texas Department of
Criminal Justice, Institutional Division. Appellant filed a motion for new trial. After it heard the
motion, the trial court denied it. Appellant contends that the trial court erred in imposing a
grossly disproportionate sentence, in denying his application for community supervision, and in
denying his motion for new trial. We affirm.
       Appellant claims that the trial court’s sentence was cruel and unusual because it was
grossly disproportionate to the offense committed. Appellant did not object to his sentence at the
time of sentencing or in any posttrial motions. Therefore, his first issue 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, it is without merit. 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.
       The record does not reflect that Appellant’s punishment was grossly disproportionate to
the offense. Appellant pleaded guilty to engaging in organized criminal activity by committing
burglary of a habitation, a first-degree felony. TEX. PENAL CODE ANN. §§ 30.02, 71.02 (West
2011). Punishment can be disproportionate to a crime only when an objective comparison of the
gravity of the offense against its severity reveals it to be extreme. Harmelin, 501 U.S. at 1004–
06. If we were to determine the sentence to be extreme, then we would compare the sentence
with sentences for similar crimes in the same jurisdiction and sentences for the same crime in
other jurisdictions. Id. The punishment assessed in this case is not extreme; it is within, and at
the lower end of, the punishment range for a first-degree felony. TEX. PENAL CODE ANN.
§ 12.32(a) (West 2011).
       Appellant takes issue with the fact that his sentence was harsher than that of one of his
codefendants. The sentences received by Appellant’s codefendants are not reflected in the
record, but one is shown in a docket-type sheet appended to Appellant’s brief. The docket-type
sheet was never entered into evidence. Items outside the record cannot be considered by this
court. See Pollan v. State, 612 S.W.2d 594, 596 (Tex. Crim. App. 1981) (affidavit attached to

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brief not part of record and not entitled to consideration by court on appeal); Belton v. State, 900
S.W.2d 886, 893 (Tex. App.—El Paso 1995, pet. ref’d) (out-of-court affidavits attached to
appellate brief cannot be considered on appeal); 43A GEORGE E. DIX & JOHN M. SCHMOLESKY,
TEXAS PRACTICE: CRIMINAL PRACTICE AND PROCEDURE § 46:123 (2011) (defense counsel should
include PSI in record if material in PSI is in dispute).            The sentences received by the
codefendants are not properly before us and cannot be considered in a proportionality analysis.
There is no evidence in the record regarding sentences for similar crimes in this jurisdiction or
sentences for the same crime in other jurisdictions. Appellant’s first issue is overruled.
          In his second issue, Appellant contends that the trial court abused its discretion in failing
to place him on community supervision. Appellant elected to have the trial court assess
punishment. In such cases, the decision of whether to grant community supervision to the
accused rests entirely within the discretion of the trial court and is not reviewable on appeal.
Speth v. State, 6 S.W.3d 530, 533 (Tex. Crim. App. 1999); Flournoy v. State, 589 S.W.2d 705,
707 (Tex. Crim. App. 1979); Martin v. State, 452 S.W.2d 481, 483 (Tex. Crim. App. 1970).
Appellant’s second issue is overruled.
          Appellant argues that, because his witnesses were unavailable at the time of the
sentencing hearing, the trial court erred by denying his motion for new trial. The granting or
denying of a motion for new trial rests within the sound discretion of the trial court, and in the
absence of an abuse of discretion, we would not be justified in reversing the judgment. State v.
Gonzalez, 855 S.W.2d 692, 696 (Tex. Crim. App. 1993). Accordingly, we will reverse the trial
court’s ruling only when its decision is so clearly wrong ―as to lie outside that zone within which
reasonable persons might disagree.‖ Gonzalez, 855 S.W.2d at 695 n.4. An abuse of discretion
occurs when the trial court’s decision was arbitrary or unreasonable. See State v. Read, 965
S.W.2d 74, 77 (Tex. App.—Austin 1998, no pet.). Thus, a trial court abuses its discretion in
denying a motion for new trial only when no reasonable view of the record could support the
trial court’s ruling.    Webb v. State, 232 S.W.3d 109, 112 (Tex. Crim. App. 2007) (citing
Charles v. State, 146 S.W.3d 204, 208 (Tex. Crim. App. 2004)). The party that complains of
abuse of discretion has the burden to bring forth a record showing such abuse. Gonzalez, 855
S.W.2d at 695–96 (citing Simon v. York Crane & Rigging Co., 739 S.W.2d 793, 795 (Tex.
1987)).



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       Appellant has failed to meet this burden. He does not argue that any of the circumstances
in which a defendant must be granted a new trial were present here. See TEX. R. APP. P. 21.3.
The trial court’s decision was not arbitrary or unreasonable, but grounded in the evidence elicited
at the hearing on the motion for new trial. The two witnesses who were absent from the
sentencing hearing had already contributed their statements to the PSI report. The witnesses
indicated that they had additions or clarifications to add to the information they had provided for
the PSI report. The witnesses did not give the substance of their additions or clarifications, and
no reason was given why that information had not been provided in the preparation of the PSI
report. As noted, the PSI report is not part of the record. Further, Appellant did not subpoena
these witnesses to guarantee their presence at the sentencing hearing via compulsory process.
On the day of sentencing, the defense announced ready instead of seeking a continuance to allow
for the presence of its witnesses. At the hearing on the motion for new trial, the trial court
weighed the evidence presented and found that there was not sufficient evidence to grant a new
trial. There is nothing in the record, and nothing presented in this appeal, to suggest an abuse of
discretion. Appellant’s third issue is overruled.
       We affirm the trial court’s judgment.




                                                            ERIC KALENAK
                                                            JUSTICE

October 27, 2011
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
McCall, J., and Kalenak, J.




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