Opinion issued August 21, 2014




                                       In The

                               Court of Appeals
                                      For The

                          First District of Texas
                             ————————————
                               NO. 01-13-00914-CR
                            ———————————
                 ADRIAN JAMISON BANKS, JR., Appellant
                                          V.
                      THE STATE OF TEXAS, Appellee


                   On Appeal from the 252nd District Court
                          Jefferson County, Texas1
                       Trial Court Case No. 12-13255


                        MEMORANDUM OPINION



1
     Originally appealed to the Ninth Court of Appeals, this case was transferred to this
     Court by the Texas Supreme Court pursuant to its docket equalization efforts. See
     TEX. GOV’T CODE ANN. § 73.001 (West 2013). We are unaware of any conflict
     between precedent of the Ninth Court of Appeals and that of this Court on any
     relevant issue. See TEX. R. APP. P. 41.3.
      Adrian Jamison Banks, Jr., pleaded guilty to aggravated assault and was

placed on community supervision. On the State’s motion, the trial court revoked

his community supervision and assessed punishment at eighteen years’

confinement.   In two issues, Banks argues that his eighteen-year sentence is

disproportionate and unreasonable, and therefore violates the United States and

Texas Constitutions’ prohibitions against cruel and unusual punishment. Banks

further contends—in what this Court construes as his third appellate argument—

that the trial court’s questioning of him during the revocation/sentencing hearing

regarding “unverified” facts violated his rights to due process and equal protection

under both the United States and Texas Constitutions.

      We affirm.

                                   Background

      Banks pleaded guilty to aggravated assault. The appellate record reflects

that Banks cut the complainant’s chin and abdomen with a knife that qualifies as a

deadly weapon. 2 Following a presentence investigation (PSI) hearing, the trial

court deferred adjudication of guilt and placed him on community supervision for

five years and assessed a fine of $500. The State subsequently filed a motion to

revoke Banks’s community supervision. Following a hearing on the motion to

adjudicate, during which Banks pleaded true to multiple allegations that he had
2
      Neither Banks nor the State mentions the underlying facts of the aggravated
      assault in their appellate briefing.


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violated the terms and conditions of his community supervision, the trial court

revoked his community supervision, adjudicated guilt, and assessed his punishment

at eighteen years’ confinement. During the hearing, the trial court questioned

Banks about his prior criminal history. Defense counsel did not object to this line

of questioning or to the assessed punishment on any ground. No motion for new

trial was filed.

                        Disproportionate-Sentence Claim

       Banks’s first and second appellate issues contend that the trial court violated

the United States and Texas Constitutions’ prohibitions against the infliction of

cruel and unusual punishment by imposing a disproportionately severe

punishment. See U.S. CONST. amend. VIII; TEX. CONST. art. 1, § 13. Specifically,

he argues that the eighteen-year sentence is grossly disproportionate to the crime in

light of the fact that he received only two years less than the maximum and that

“under the facts of the present case, this sentence can be considered harsh.” Banks

further contends that “the [t]rial [c]ourt unreasonabl[y] applied facts within the PSI

and failed to comply with Tex. Code Crim. Proc. Ann. art. 37.07, section 3” and

that the trial court’s “unwarranted concern for and obvious consideration of matters

not presented in evidence added to the unreasonableness of [his] sentence.”

According to Banks, the “repeated interrogation by the trial judge into these




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matters alone gives a clear indication why the sentence imposed was so harsh in

light of the allegations that [he] plead[ed] true to.”

      First, a claim based on a disproportionate sentence must be preserved for

appellate review. See TEX. R. APP. P. 33.1(a)(1); Noland v. State, 264 S.W.3d 144,

151 (Tex. App.—Houston [1st Dist.] 2007, pet. ref’d) (“[I]n order to preserve for

appellate review a complaint that a sentence is grossly disproportionate,

constituting cruel and unusual punishment, a defendant must present to the trial

court a timely request, objection, or motion stating the specific grounds for the

ruling desired.”); see also Rhoades v. State, 934 S.W.2d 113, 120 (Tex. Crim. App.

1996) (noting that constitutional rights, including the right to be free from cruel

and unusual punishment, may be waived). To preserve a complaint for review, a

party must have presented to the trial court a timely request, objection, or motion

that states the specific grounds for the desired ruling if they are not apparent from

the context of the request, objection, or motion. TEX. R. APP. P. 33.1(a)(1); Clark

v. State, 365 S.W.3d 333, 339 (Tex. Crim. App. 2012). Further, the trial court

must have “ruled on the request, objection, or motion, either expressly or

implicitly,” or the complaining party must have objected to the trial court’s refusal

to rule. TEX. R. APP. P. 33.1(a)(2); Pena v. State, 353 S.W.3d 797, 807 (Tex. Crim.

App. 2011).      At the revocation/sentencing hearing, Banks did not assert a

disproportionate-sentence claim, nor did he file a motion for new trial or otherwise



                                            4
present   his   objection   to   the   imposed     sentence.      As    such,   his

disproportionate-sentence claim is not preserved for appellate review. See TEX. R.

APP. P. 33.1(a)(1); Clark, 365 S.W.3d at 339; see also Noland, 264 S.W.3d at 152.

      Second, even had Banks preserved his claim for our review, his argument is

unavailing. Texas appellate courts rarely consider a punishment that is within the

statutory range for the offense established by the Legislature to be excessive or

unconstitutionally cruel or unusual under either the Texas Constitution or the

United States Constitution. See Ajisebutu v. State, 236 S.W.3d 309, 314 (Tex.

App.—Houston [1st Dist.] 2007, pet. ref’d); see also Kirk v. State, 949 S.W.2d

769, 772 (Tex. App.—Dallas 1997, pet. ref’d). Indeed, the trial court’s discretion

to impose any punishment within the prescribed range has been described by the

Court of Criminal Appeals as being “essentially ‘unfettered.’” Ex parte Chavez,

213 S.W.3d 320, 323 (Tex. Crim. App. 2006) (quoting Miller–El v. State, 782

S.W.2d 892, 895–96 (Tex. Crim. App. 1990)). Aggravated assault is a second

degree felony under the facts of this case and the range of punishment for a second

degree felony is two to twenty years’ confinement in TDCJ. See TEX. PENAL CODE

ANN. § 22.02(b) (West 2011).       Although it is only two years less than the

maximum, Banks’s eighteen-year sentence falls within the statutory range for the

charged offense, and as such, is presumptively neither cruel nor unusual.




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      An assessed punishment that is within the statutory range, however, must

still be proportionate to the underlying offense. See Ex parte Chavez, 213 S.W.3d

at 323–24 (stating trial court’s discretion to impose any punishment within

statutory range is limited only by Eighth Amendment’s gross-disproportionality

review); see also Ajisebutu, 236 S.W.3d at 314. Eighth Amendment challenges are

analyzed by reviewing the proportionality of the sentence compared to the crime.

See Graham v. Florida, 560 U.S. 48, 59–60, 130 S. Ct. 2011, 2021–22 (2010);

Solem v. Helm, 463 U.S. 277, 292, 103 S. Ct. 3001, 3011 (1983).3 Our objective

analysis is guided by (1) the gravity of the offense and the harshness of the penalty;

(2) the sentences imposed on other criminals in the same jurisdiction; and (3) the

sentences imposed for the commission of the crime in other jurisdictions. Graham,

560 U.S. at 60, 130 S. Ct. at 2022. We are to judge the gravity of the offense in

light of the harm caused or threatened to the victim or society, and the culpability

of the offender, Solem, 463 U.S. at 292, 103 S. Ct. at 3011, and only if we find that

the sentence is grossly disproportionate to the offense under the first factor will we
3
      Banks also cites to numerous federal opinions that discuss the application of the
      federal sentencing guidelines in federal criminal proceedings and the applicable
      standard of review (e.g., United States v. Booker, 543 U.S. 220, 125 S. Ct. 738
      (2005)), but neither the federal sentencing guidelines nor the federal trial court’s
      application of such guidelines in federal court are applicable to the present appeal.
      See Harper v. State, 930 S.W.2d 625, 632 (Tex. App.—Houston [1st Dist.] 1996,
      no pet.); see also Turner v. State, 09–06–00280–CR, 2007 WL 2874265, at *1
      (Tex. App.—Beaumont Oct. 3, 2007, pet. ref’d) (mem. op., not designated for
      publication) (citing Harper and stating that federal sentencing guidelines are
      inapplicable for purposes of determining whether punishment assessed by state
      court is grossly disproportionate to gravity of offense).

                                            6
then consider the second two factors to determine whether the sentence was

unconstitutionally excessive. See Graham, 560 U.S. at 60, 130 S. Ct. at 2022.

“Grossly disproportionate” sentences are “exceedingly rare.”       See Lockyer v.

Andrade, 538 U.S. 63, 73, 123 S. Ct. 1166, 1169 (2003).

      The first prong of the proportionality analysis requires the comparison of the

gravity of the underlying offense (aggravated assault) and the harshness of the

sentence (eighteen-years’ incarceration). The nature of Banks’s violations of his

community supervision requirements has no bearing on this analysis. See Buerger

v. State, 60 S.W.3d 358, 365–66 (Tex. App.—Houston [1st Dist.] 2001, pet. ref’d)

(defendant’s fifteen-year sentence rested upon adjudication of guilt for crime

alleged, not his violation of community supervision requirements that led to

revocation of deferred adjudication). Banks’s arguments regarding the trial court’s

questioning of him during the revocation/sentencing hearing, its reliance upon

“unverified” facts, and its alleged violation of Code of Criminal Procedure article

37.07, section 3, are also irrelevant for purposes of comparing the gravity of the

offense and the harshness of the sentence, and therefore, these arguments have no

bearing on our analysis. See Jacoby v. State, 227 S.W.3d 128, 132 (Tex. App.—

Houston [1st Dist.] 2006, pet. ref’d) (citing Solem, 463 U.S. at 292, 103 S. Ct. at

3011).




                                         7
      The record reflects that Banks pleaded guilty to intentionally, knowingly,

and recklessly causing bodily injury to the complainant with a deadly weapon (i.e.,

cutting the complainant with a knife). The harm caused to the complainant is

obvious and significant, and in light of his guilty plea, Banks’s culpability is

obvious as well. See Solem, 463 U.S. at 292, 103 S. Ct. at 3011 (stating gravity of

offense judged in light of harm caused or threatened to victim or society, and

culpability of offender). In light of the gravity of the offense, we cannot say that

Banks’s eighteen-year sentence, which is within the statutory range for such

offenses, is “grossly disproportionate.” Lockyer, 538 U.S. at 73, 123 S. Ct. at

1169 (noting that with regard to noncapital crimes, gross disproportionality

principle applies only in “exceedingly rare” and “extreme” cases). As such, there

is no need for us to consider the second and third factors. See Graham, 560 U.S. at

60, 130 S. Ct. at 2022.

      We note that even if we were to reach this portion of the analysis, the record

contains no evidence “reflecting sentences imposed for similar offenses on

criminals in Texas or other jurisdictions by which to make a comparison” in

evaluating Banks’s disproportionate sentence claim. 4 Jackson v. State, 989 S.W.2d

842, 846 (Tex. App.—Texarkana 1999, no pet.).


4
      Banks asks this Court to abate the appeal to allow him to gather this information,
      but he cites no applicable authority which would entitle him to such abatement.
      See TEX. R. APP. P. 38.1(i).


                                           8
      We overrule Banks’s first and second issues.

                       Due Process and Equal Protection

      Banks also argues that the trial court’s questioning of him during the

revocation/sentencing hearing regarding “unverifiable facts” which the court then

used to assess his punishment violated his rights to due process and equal

protection under both the United States and Texas Constitutions. Banks did not

object to the trial court’s questioning of him regarding these matters or the court’s

consideration of any “unverifiable facts” at the hearing, and, therefore, he has not

preserved this issue for our review. See TEX. R. APP. P. 33.1(a)(1). Moreover,

even if he had objected, Banks cites no relevant authority to support this argument

on appeal, nor identifies the “unverifiable facts” the trial court allegedly relied

upon. As such, this complaint is also waived due to inadequate briefing. See TEX

R. APP. P. 38.1(i) (requiring appellate brief to contain clear and concise argument

for contentions made, with appropriate citations to authorities and to record); see

also Mims v. State, 238 S.W.3d 867, 874 (Tex. App.—Houston [1st Dist.] 2007, no

pet.) (finding complaint on appeal was waived where defendant failed to

specifically identify statement he claimed was hearsay).

      We overrule Banks’s third issue, as construed by this Court.




                                         9
                                   Conclusion

      We affirm the trial court’s judgment.




                                              Jim Sharp
                                              Justice


Panel consists of Justices Keyes, Sharp, and Huddle.

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




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