Opinion
No. 06-05-00071-CR
Submitted: July 22, 2005.
Decided: July 26, 2005. DO NOT PUBLISH.
On Appeal from the 71st Judicial District Court Harrison County, Texas, Trial Court No. 030299X.
Before MORRISS, C.J., ROSS and CARTER, JJ.
MEMORANDUM OPINION
Youree Culberson appeals from the final adjudication of his guilt for the offense of burglary of a habitation. The trial court found that he had violated the terms of his community supervision, adjudicated him guilty, and assessed punishment at ten years' imprisonment. On appeal, Culberson attacks only the sentencing phase of the proceeding, contending the sentence imposed is disproportionate to the offense. The offense is a second degree felony, which carries a punishment range of two to twenty years, and a fine not to exceed $10,000.00. TEX. PEN. CODE ANN. §§ 12.33, 30.02 (Vernon 2003). We first look to see if the issue has been preserved for review. Culberson did not object to the sentence on the ground it was disproportionate to the crime, or on any other ground, at the time it was imposed. However, the motion for new trial contains a contention that the sentence was disproportionate to the offense. To preserve a complaint for appellate review, an appellant must have presented to the trial court a timely request, objection, or motion stating the specific grounds for the ruling desired. TEX. R. APP. P. 33.1(a)(1)(A); Rhoades v. State, 934 S.W.2d 113, 119 (Tex.Crim.App. 1996). This Court has held that a defendant is required to raise a disproportionality objection in a timely manner. Hookie v. State, 136 S.W.3d 671, 679-80 (Tex.App.-Texarkana 2004, no pet.); Jackson v. State, 989 S.W.2d 842, 845 (Tex.App.-Texarkana 1999, no pet.). A motion for new trial is an appropriate way to preserve the claim for review. Delacruz v. State, No. 06-04-00123-CR, 2005 Tex. App. LEXIS 4747, *2 (Tex.App.-Texarkana June 22, 2005, no pet. h.). Texas courts have repeatedly held that, as long as the punishment assessed is within the range prescribed by the Legislature in a valid statute, the punishment is not excessive, cruel, or unusual. See, e.g., Jordan v. State, 495 S.W.2d 949, 952 (Tex.Crim.App. 1973). However, in Jackson, 989 S.W.2d at 845, we recognized that a prohibition against grossly disproportionate punishment survives under the Eighth Amendment to the United States Constitution apart from any consideration of whether the punishment assessed is within the range established by the Legislature. See also Fluellen v. State, 71 S.W.3d 870, 873 (Tex.App.-Texarkana 2002, pet. ref'd). As we set out in Alberto v. State, 100 S.W.3d 528, 530 (Tex.App.-Texarkana 2003, no pet.), our proportionality 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 commission of the same crime in other jurisdictions. See Solem v. Helm, 463 U.S. 277, 292 (1983). Only if we find that the sentence is grossly disproportionate to the offense will we then consider the remaining factors of the Solem test and compare the sentence received to sentences for similar crimes in the same jurisdiction and to sentences for the same crime in other jurisdictions. Alberto, 100 S.W.3d at 530. Here, the sentence imposed is in the middle of the available range for punishment. Further, there is no evidence in the record comparing this sentence with others in the same jurisdiction for this offense, or those imposed on defendants in other jurisdictions who committed a similar offense. See id. For all of those reasons, disproportionate sentencing has not been shown. We affirm the judgment.