Full Opinion (html_with_citations)

                         NUMBER 13-21-00179-CR

                            COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                     CORPUS CHRISTI – EDINBURG


LARRY DEAN ESQUIVEL,                                                      Appellant,

                                             v.

THE STATE OF TEXAS,                                                       Appellee.


                   On appeal from the 36th District Court
                        of Aransas County, Texas.


                         MEMORANDUM OPINION

 Before Chief Justice Contreras and Justices Benavides and Tijerina
              Memorandum Opinion by Justice Tijerina

      Appellant Larry Dean Esquivel appeals the trial court’s judgment revoking his

community supervision and sentencing him to two years’ imprisonment for possession of

a controlled substance, less than one gram of methamphetamine, a state-jail felony. See

TEX. HEALTH & SAFETY CODE ANN. § 481.115(b). In one issue, Esquivel argues his
sentence of a two-year prison term constitutes cruel and unusual punishment in violation

of the Eighth and Fourteenth Amendments of the United States Constitution and Article

I, § 13 of the Texas Constitution. See U.S. CONST. amend. VIII; TEX. CONST. art. I, § 13.

We affirm.

                                     I.   BACKGROUND

       On May 8, 2019, Esquivel entered an open plea of guilty, and the trial court

sentenced him to two years’ imprisonment. The trial court suspended Esquivel’s sentence

of confinement and placed him on community supervision for a term of five years. On July

1, 2020, the State filed a motion to revoke community supervision, alleging Esquivel

violated the terms of his community supervision by admitting to a relapse of

methamphetamine on January 23, 2020, failing to report to his community supervision

officer, and financial arrearages.

       At the motion to revoke hearing, Esquivel pleaded true to each allegation. The trial

court admitted Esquivel’s stipulation and his presentence investigation report into

evidence. Esquivel testified that he agreed that the trial court should revoke his

community supervision. The State informed the trial court that it recommended a twelve-

month jail sentence.

       The trial court found each alleged violation to be true, revoked Esquivel’s

community supervision, and sentenced Esquivel to two years’ imprisonment. This appeal

followed.




                                            2
                          II.    CRUEL & UNUSUAL PUNISHMENT

       In his sole issue, Esquivel argues that a two-year sentence violates the cruel and

unusual punishment clause of the Eighth and Fourteenth Amendments to the United

States Constitution and article I, § 13 of the Texas Constitution because the sentence

was grossly disproportionate to the conduct. See U.S. CONST. amend. VIII; TEX. CONST.

art. I, § 13. The State contends that Esquivel failed to object at the revocation hearing or

bring a sufficient record to prove his claim of a disproportionate sentence. Alternatively,

the State asserts a sentence within the punishment range is clearly not excessive or

disproportionate.

A.     Applicable Law

       An allegation of excessive or disproportionate punishment is a legal claim

“embodied in the Constitution’s ban on cruel and unusual punishment” and based on a

“narrow principle that does not require strict proportionality between the crime and the

sentence.” State v. Simpson,
488 S.W.3d 318
, 322–24 (Tex. Crim. App. 2016) (citing

Harmelin v. Michigan,
501 U.S. 957, 1001
 (1991)); see U.S. CONST. amend. VIII

(“Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual

punishments inflicted.”). A successful challenge to proportionality is exceedingly rare and

requires a finding of “gross disproportionality.” Simpson, 488 S.W.3d at 322–23 (citing

Lockyer v. Andrade,
538 U.S. 63, 73
 (2003)); Trevino v. State,
174 S.W.3d 925, 928
 (Tex.

App.—Corpus Christi–Edinburg 2005, pet. ref’d) (providing that a sentence is unlikely to

be disturbed on appeal if it is assessed within the legislatively determined range); see




                                             3
TEX. PENAL CODE ANN. § 12.35 (“[A]n individual adjudged guilty of a state jail felony shall

be punished by confinement in a state jail for any term of not more than two years or less

than 180 days.”).

        To preserve for appellate review a complaint that a sentence constitutes 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 TEX. R. APP.

P. 33.1(a); Smith v. State,
721 S.W.2d 844, 855
 (Tex. Crim. App. 1986); Navarro v. State,
588 S.W.3d 689
, 690 (Tex. App.—Texarkana 2019, no pet.) (holding that to preserve a

disproportionate-sentencing complaint, the defendant must make a timely, specific

objection in the trial court or raise the issue in a motion for new trial); Toledo v. State,
519 S.W.3d 273, 284
 (Tex. App.—Houston [1st Dist.] 2017, pet. ref’d) (same).

B.      Analysis

        Esquivel did not object in the trial court that the Texas Constitution afforded him

broader rights than the United States Constitution. See TEX. R. APP. P. 33.1. Accordingly,

we hold that Esquivel failed to preserve this complaint for our review. See id.; Smith,
721 S.W.2d at 855
; Navarro, 588 S.W.3d at 690. The State argues that Esquivel failed to

preserve his federal proportionality claim.1 We assume without deciding that Esquivel did


        1  We acknowledge that Esquivel filed a motion for new trial. However, Esquivel did not: request a
hearing, attach an affidavit, set out any factual basis for his claim, present any Solem factors, or argue that
his sentence violated the Eighth or Fourteenth Amendments of the United States Constitution or Article I, §
13 of the Texas Constitution. See Solem v. Helm,
463 U.S. 277
, 290–91, (1983); Hobbs v. State,
298 S.W.3d 193, 199
 (Tex. Crim. App. 2009) (“A motion for new trial must be supported by an affidavit
specifically setting out the factual basis for the claim.”); Rezac v. State,
782 S.W.2d 869, 870
 (Tex. Crim.
App. 1990) (“In order for an issue to be preserved on appeal, there must be a timely objection which
specifically states the legal basis for the objection.”) (emphasis added); see also Ajisebutu v. State,
236 S.W.3d 309, 313
 (Tex. App.—Houston [1st Dist.] 2007, pet. ref’d) (holding that defendant failed to preserve



                                                      4
preserve the claim.

        However, even when assuming for purposes of Esquivel’s argument the viability

of a proportionality review, we nonetheless conclude that Esquivel has not demonstrated

“gross disproportionality.” To determine whether a sentence is grossly disproportionate,

“a court must judge the severity of the sentence in light of the harm caused or threatened

to the victim, the culpability of the offender, and the offender’s prior adjudicated and

unadjudicated offenses.” Simpson,
488 S.W.3d at 323
. “In the rare case in which this

threshold comparison leads to an inference of gross disproportionality, the court should

then compare the defendant’s sentence with the sentences received by other offenders

in the same jurisdiction and with the sentences imposed for the same crime in other

jurisdictions.”
Id.

        Even if we assume Esquivel successfully met the first prong of the Simpson test,

there is no evidence in the record that would allow the court to “compare the defendant’s

sentence with the sentences received by other offenders in the same jurisdiction and with

the sentences imposed for the same crime in other jurisdictions.”
Id.
 Thus, because the

trial court had no evidence before it that would allow it to engage in the comparative

analysis detailed in Simpson, we cannot conclude it erred by sentencing Esquivel within

the statutory guidelines. See TEX. PENAL CODE ANN. § 12.35 (“[A]n individual adjudged



for review his claim that his sentence was in violation of state law when he did not “state any specific
constitutional or statutory provision” in his motion for new trial other than a “general objection based on
federal and state constitutional grounds”). Moreover, Esquivel does not challenge the trial court’s denial of
his motion for new trial, nor does he acknowledge the motion for new trial on appeal.




                                                     5
guilty of a state jail felony shall be punished by confinement in a state jail for any term of

not more than two years or less than 180 days.”); Simpson, 488 S.W.3d at 322–23. We

overrule Esquivel’s sole issue.

                                    III.    CONCLUSION

       We affirm the trial court’s judgment.

                                                                        JAIME TIJERINA
                                                                        Justice

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

Delivered and filed on the
8th day of December, 2022.




                                               6