No. 01-08-00822-CR
Opinion issued September 24, 2009. DO NOT PUBLISH. See TEX. R. APP. P. 47.2(b).
On Appeal from the 56th District Court, Galveston County, Texas, Trial Court Cause No. 05CR2613.
Panel consists of Justices KEYES, ALCALA and HANKS.
GEORGE C. HANKS, Jr., Justice.
Appellant, James Franklin Curtis, was charged by indictment with aggravated assault with a deadly weapon. Pursuant to a plea agreement, the trial judge placed appellant on community supervision and entered a deferred judgment community supervision order. The State later sought to adjudicate appellant's guilt and revoke his community supervision. The trial court held a hearing, during which appellant admitted failing to comply with all of the terms of his community supervision. The trial court found appellant guilty of the original indicted felony, revoked appellant's probation and sentenced appellant to seven years' confinement. Appellant contends that the trial court erred by sentencing him to seven years' confinement. Appellant argues that because he was allegedly originally offered two years' confinement in a plea deal by prosecutors, the trial court's decision to sentence him to seven years' after the revocation of his community supervision is "grossly disproportionate and, as such, cruel and unusual." We affirm.
Background
In 2005, appellant was indicted for the offense of assault with a deadly weapon. The indictment alleged that appellant "intentionally, knowingly or recklessly cause[d] bodily injury to Cory Daugherty by cutting and stabbing the said Cory Daugherty with a knife, and the defendant did then and there use or exhibit a deadly weapon, to-wit: a knife, during the commission of said assault." In April 2006, appellant pled guilty to the offense. The trial court then entered a deferred judgment community supervision order, noting that appellant had pled guilty to a second degree felony for which the applicable punishment range was two to twenty years' incarceration. The order also noted the affirmative finding of a deadly weapon. The order deferred and probated appellant's sentencing for a period of ten years, and set forth conditions of supervision imposed by the court. Appellant acknowledged receipt of a copy of the order and his understanding of the order by signing it. On May 30, 2007, the State filed the first of several motions to adjudicate appellant's guilt and to revoke his community supervision, alleging that appellant had violated several of the conditions of his community supervision. On August 25, 2008, after an evidentiary hearing, the trial court adjudicated appellant guilty of the offense of aggravated assault with a deadly weapon, a second degree felony, and found "true" to several paragraphs in the motion to adjudicate. The trial court sentenced appellant to seven years' confinement in the Institutional Division of the Texas Department of Criminal Justice. The trial court also certified that appellant had the right to appeal. Appellant did not object to the sentence, nor did he file a motion for new trial on any grounds. Analysis
The record from the hearing on the motion to revoke probation and the sentencing hearing does not reflect that appellant objected to the sentence as violating his constitutional rights when his sentence was pronounced, nor did he object in a post-trial motion. Appellant did not raise with the trial court the contention he now voices. TEX. R. APP. P. 33.1. Constitutional rights, including the right to be free from cruel and unusual punishment, may be waived. Rhoades v. State, 934 S.W.2d 113, 120 (Tex. Crim. App. 1996); Mercado v. State, 718 S .W.2d 291, 296 (Tex. Crim. App. 1986) (en banc) (stating that appellant could not assert error regarding sentencing on appeal without raising that error in the trial court); Wise v. State, 223 S.W.3d 548, 554 (Tex. App.-Amarillo 2007, pet. ref'd) (even constitutional rights may be waived); Castaneda v. State, 135 S.W.3d 719, 723 (Tex. App.-Dallas 2003, no pet.)(same); Nicholas v. State, 56 S.W.3d 760, 768 (Tex. App.-Houston [14th Dist.] 2001, pet. ref'd) (holding that freedom from cruel and unusual punishment under both the Texas and federal constitutions may be waived by failing to object in the trial court). Accordingly, appellant has waived this issue by failing to preserve error. Even if appellant had preserved this complaint for review, however, he still would not prevail. A sentence assessed by a trial judge is not cruel and unusual under the Texas constitution when, as here, it is within the statutory range. Baldridge v. State, 77 S.W.3d 890, 893-94 (Tex. App.-Houston [14th Dist.] 2002, pet. ref'd). Aggravated assault is a second-degree felony with a punishment range of two to twenty years' imprisonment. See TEX. PENAL CODE ANN. § 12.33 (Vernon 2003), § 22.02(b) (Vernon Supp. 2007). Appellant concedes that his punishment is within the statutory range, but nonetheless contends it is grossly disproportionate to the facts in violation of the constitutional prohibition against cruel and unusual punishment and thus violates his federal constitutional rights. See U.S. Const. amend. VIII; Solem v. Helm, 463 U.S. 277, 103 S.Ct. 3001, 3006 (1983). The proportionality of a sentence is evaluated by considering (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 commission of the same crime in other jurisdictions. Solem, 463 U.S. at 292, 103 S.Ct. at 3011. Unless appellant establishes the first element of the Solem test, that his sentence is grossly disproportionate to his crime, we need not address the second and third elements. See McGruder v. Puckett, 954 F.2d 313, 316 (5th Cir. 1992); see also Robertson v. State, 245 S.W.3d 545, 546 (Tex. App.-Tyler 2007, pet. denied); Jackson v. State, 989 S.W.2d 842, 845-46 (Tex. App.-Texarkana 1999, no pet.). In determining whether Appellant's sentence is grossly disproportionate, we are guided by the holding in Rummel v. Estelle, 445 U.S. 263, 100 S.Ct. 1133 (1980). After considering the facts of the instant case in light of Rummel, we conclude that Appellant's sentence was not unconstitutionally disproportionate. See id., 445 U.S. at 266, 100 S.Ct. at 1134-35 (holding that life sentence is not cruel and unusual punishment for obtaining $120.75 by false pretenses where appellant had a prior felony conviction for fraudulent use of credit card to obtain $80 worth of goods or services and another for passing a forged check in amount of $28.36). Assault with a knife, "cutting and stabbing" the victim in the process, is an unquestionably violent crime and we do not find seven years to be a disproportionate term of confinement for such an act. See, e.g., Robertson v. State, 245 S.W.3d 545, 546 (Tex. App.-Tyler 2007, pet. denied) (holding that twenty years' confinement was not a disproportionate sentence for assault with a deadly weapon). Absent a threshold showing of disproportionality, we need not address the second and third Solem elements. Therefore, we cannot conclude that appellant's sentence constituted cruel and unusual punishment. Finally, appellant asks us to consider the sentence assessed in light of the two years' incarceration he claims he was offered at some point during plea negotiations. The only evidence of such an offer in the record is appellant's testimony that, prior to pleading guilty to aggravated assault in return for ten years' deferred adjudication, he was "going to take two years in TDCJ." While this statement might be evidence of appellant's willingness to agree to such an offer, it is not clear evidence that such an offer was actually made by the State, and it has no impact on our above analysis of disproportionality. Conclusion
We hold that the trial court did not err by assessing punishment at seven years' confinement and affirm the judgment of the trial court.