Opinion
No. 06-05-00111-CR
Submitted: November 28, 2005.
Decided: December 7, 2005. DO NOT PUBLISH.
On Appeal from the 71st Judicial District Court, Harrison County, Texas, Trial Court No. 04-0305X.
Before MORRISS, C.J., ROSS and CARTER, JJ.
MEMORANDUM OPINION
Wendell McCoy and his best friend, Patrick Lister, were together and drinking heavily. After an encounter with police at a local bar, McCoy was angry and talked of driving by and "shooting up" the police station. Lister's efforts to talk McCoy out of the retaliation resulted in McCoy's shooting Lister once in the lower abdomen and maybe another time in the buttocks. For the shooting, a Harrison County jury convicted McCoy of aggravated assault and assessed punishment at fifteen years' imprisonment. The trial court sentenced McCoy accordingly. In a sole point of error, McCoy asserts the sentence is disproportionate. We affirm the judgment. Texas courts have traditionally 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). But 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 Jackson v. State, 989 S.W.2d 842, 846 (Tex.App.-Texarkana 1999, no pet.); see also Fluellen v. State, 71 S.W.3d 870, 873 (Tex.App.-Texarkana 2002, pet. ref'd). Our proportionality analysis under both the Eighth Amendment to the United States Constitution and Article I, Section 13 of the Texas Constitution 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); Simmons v. State, 944 S.W.2d 11, 15 (Tex.App.-Tyler 1996, pet. ref'd) (evaluating appellant's Texas constitutional claim of cruel and unusual punishment under test outlined in Solem). 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. McGruder v. Puckett, 954 F.2d 313, 316 (5th Cir. 1992); see also Davis v. State, 905 S.W.2d 655, 664-65 (Tex.App.-Texarkana 1995, pet. ref'd). As a prerequisite to presenting a complaint for appellate review, the record must show that the complaint was made to the trial court and that the trial court either ruled or refused to rule on that complaint. Tex.R.App.P. 33.1(a). The complaint must be sufficiently specific to make the trial court aware of the grounds of the complaint. Tucker v. State, 990 S.W.2d 261, 262 (Tex.Crim.App. 1999). At no time did McCoy object to the trial court concerning the sentence imposed on him. There was no motion for new trial. He has not preserved for our review the alleged disproportionality of his sentence. Even if McCoy had preserved this issue for our review, and assuming we were to find that McCoy's sentence was grossly disproportionate to his crime, the record does not contain any evidence comparing this sentence with others in the same jurisdiction for this offense, or those imposed on defendants in other jurisdictions who committed similar offenses. Delacruz v. State, 167 S.W.3d 904, 906 (Tex.App.-Texarkana 2005, no pet.); Alberto v. State, 100 S.W.3d 528, 530 (Tex.App.-Texarkana 2003, no pet.). Therefore, even if preserved, no error has been shown. We affirm the judgment of the trial court.