Appeal from the 104th District Court Taylor County, Texas
Trial Court Cause No. 19636B
consists Wright, C.J., Willson, J., and Bailey, J.
Anthony Alvarez pleaded guilty to the first-degree felony
offense of possession of a controlled substance,
methamphetamine, with intent to deliver. The trial court
assessed punishment at confinement for forty years and
sentenced him. In a single issue on appeal, Appellant asserts
that the trial court violated his Eighth Amendment right to
be free of cruel and unusual punishment. We affirm.
entered into a "charge bargain" at trial where he
pleaded guilty in return for three other charges being
dismissed once he was sentenced in this cause. The trial
court ordered a presentence investigation report and
conducted a disposition hearing. At the disposition hearing,
the trial court heard evidence about the three cases
concurrently charged against him, which included forgery,
assault family violence, and the burglary of a home where the
owner and her small child were present.
admitted he was on methamphetamine the day law enforcement
arrested him for possession with intent to sell
methamphetamine, as well as during past incidents with
police. During a routine traffic stop, a law enforcement K-9
unit discovered methamphetamine in Appellant's glove
compartment. Officers also discovered three cell phones and a
number of small square baggies in the vehicle. The trial
court heard testimony about Appellant's criminal history,
including (1) possession of marihuana, (2) a disorderly
conduct charge, and (3) a prohibited weapons charge.
Appellant had a past revocation of probation due to a
positive urinalysis test for methamphetamine, cocaine, and
amphetamines and his failure to report. Having considered all
the evidence, the trial court assessed a sentence of
confinement for forty years.
Standard of Review
review a trial court's sentencing determination, "a
great deal of discretion is allowed the sentencing
judge." Jackson v. State, 680 S.W.2d 809, 814
(Tex. Crim. App. 1984). We will not disturb a trial
court's decision as to punishment absent a showing of
abuse of discretion and harm. Id. When a sentence
falls within the statutory range of punishment, it is
generally not "excessive, cruel, or unusual."
State v. Simpson, 488 S.W.3d 318, 323 (Tex. Crim.
App. 2016). The statutory range of punishment for a
first-degree felony is confinement for not more than
ninety-nine years or less than five years, or
life. The trial court may also assess a fine of
up to $10, 000.
that a very narrow exception exists and that an
individual's sentence may constitute cruel and unusual
punishment, despite falling within the statutory range, if it
is grossly disproportionate to the offense. Solem v.
Helm, 463 U.S. 277, 287 (1983). The Eighth Amendment
prohibits grossly disproportionate sentences for an offense.
Bradfield v. State, 42 S.W.3d 350, 353 (Tex.
App.-Eastland 2001, pet. ref'd) (citing Harmelin v.
Michigan, 501 U.S. 957 (1991)). However, "[o]utside
the context of capital punishment, successful
challenges to the proportionality of particular sentences
[will be] exceedingly rare." Solem, 463 U.S. at
289-90 (alterations in original) (quoting Rummel v.
Estelle, 445 U.S. 263, 272 (1980)).
appeal, Appellant asserts that the trial court violated his
right to be free from cruel and unusual punishment, as
defined by the Eighth Amendment of the United States
Constitution. He argues that the trial court violated
evolving standards of decency when it sentenced him to
confinement for forty years. Appellant contends that,
especially in light of the State's failure to prove he
caused physical injury to anyone, the offense, coupled with
Appellant's other acts, did not warrant that sentence. In
response, the State asserts that Appellant's sentence was
not cruel or unusual because of his offending history and
because the range of punishment for a first-degree felony is
imprisonment for five to ninety-nine years or
at the outset that Appellant made no objection to his
sentence in the trial court, either at the time of
disposition or in any posttrial motion. Appellant did not
lodge an objection, under constitutional or other grounds, to
the alleged disparity, cruelty, unusualness, or excessiveness
of the sentence. To preserve an error for appellate review, a
party must present a timely objection to the trial court,
state the specific grounds for the objection, and obtain a
ruling. Tex.R.App.P. 33.1(a). Therefore, Appellant has failed
to preserve error and has waived his complaint on appeal.
See id.; Curry v. State, 910 S.W.2d 490,
497 (Tex. Crim. App. 1995) (Eighth Amendment issues are
forfeited if not raised in the trial court.); Solis v.
State, 945 S.W.2d 300, 301 (Tex. App.-Houston [1st
Dist.] 1997, pet. ref'd) (holding that a claim of grossly
disproportionate sentence in violation of Eighth Amendment
was forfeited by failure to object).
even if we are incorrect on the issue of forfeiture,
Appellant's claim of cruel and unusual punishment still
fails because his sentence was not cruel or unusual. In this
case, the trial court assessed a sentence that was within the
statutory range. Nonetheless, if the sentence is grossly
disproportionate to the offense or sentences in other similar
offenses, the sentence may violate the Eighth Amendment.
See Bradfield, 42 S.W.3d at 353. To evaluate the
proportionality of a sentence, the first step is for us to
make a threshold comparison between the gravity of the
offense and the severity of the sentence. Id. When
we analyze the gravity of the offense, we examine the harm
caused or threatened to the victim or society and the
culpability of the offender. See, e.g., Hooper
v. State, No. 11-10-00284-CR, 2011 WL 3855190, at *3
(Tex. App.-Eastland Aug. 31, 2011, pet. ref'd) (mem. op.,
not designated for publication) (citing Solem, 463
U.S. at 291-92). We also consider the sentence imposed in
light of the offender's prior adjudicated and
unadjudicated offenses. Culton v. State, 95 S.W.3d
401, 403 (Tex. App.-Houston [1st Dist.] 2002, pet.