David Michael Isassi v. the State of Texas ( 2023 )

NUMBER 13-22-00384-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
DAVID MICHAEL ISASSI, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 105th District Court
of Kleberg County, Texas.
MEMORANDUM OPINION
Before Justices Tijerina, Silva, and Peña
Memorandum Opinion by Justice Peña
Appellant David Michael Isassi appeals the trial court’s judgment revoking his
community supervision, adjudicating him guilty of aggravated assault with a deadly
weapon, a second-degree felony, see TEX. PENAL CODE ANN. § 22.02(a)(2), and
sentencing him to twenty years’ imprisonment. In one issue, Isassi argues his twenty-year
sentence is grossly disproportionate to the seriousness of the offense in violation of the
Eighth Amendment’s proscription of cruel and unusual punishment. See U.S. CONST.
amend VIII. We affirm.
I. BACKGROUND
A grand jury returned an indictment charging Isassi with two counts of aggravated
assault. The first count alleged that Isassi caused bodily injury to the complainant while
using or exhibiting a hammer. See id. The second count alleged that Isassi threatened
the complainant with imminent bodily injury while using or exhibiting a knife. See id. Isassi
pleaded guilty to count two pursuant to a plea agreement in exchange for the State’s
recommendation to dismiss count one. The trial court accepted Isassi’s guilty plea,
ordered the dismissal of count one, and placed Isassi on deferred adjudication-community
supervision for seven years.
The trial court later held a hearing on the State’s second amended motion to revoke
community supervision and adjudicate guilt, during which the State proceeded on the
following alleged violations: 1 (1) failing to abide by zero tolerance supervision;
(2) possessing a firearm; (3) tampering with evidence; (4) associating with persons of
disreputable or harmful character; (5) admitting to marijuana use; (6–7) testing positive
for cocaine and marijuana; (8) failing to report to Isassi’s community supervision officer;
(9) failure to submit to a urinalysis; and (10–19) failing to pay court costs, fines, and fees.
Isassi pleaded not true to each alleged violation.
1 The State filed two previous motions to revoke and adjudicate guilt, which resulted in the trial
court amending the conditions of Isassi’s community supervision. We renumber the allegations set out in
the State’s live motion to reflect its abandonment of four counts.
2
After hearing evidence, the trial court found the allegations that Isassi tampered
with evidence and tested positive for cocaine and marijuana not true. The trial court found
true the remaining allegations. The trial court revoked Isassi’s community supervision,
adjudicated him guilty for aggravated assault, and sentenced Isassi to twenty years’
imprisonment. This appeal followed.
II. CRUEL & UNUSUAL PUNISHMENT
A. Standard of Review & Applicable Law
The Eighth Amendment—made applicable to the states through the Fourteenth
Amendment—prohibits the imposition of cruel and unusual punishments, which includes
extreme sentences that are grossly disproportionate to the crime. Graham v. Florida, 560
U.S. 48, 58–60 (2010); see U.S. CONST. amend. VIII (“Excessive bail shall not be
required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”); id.amend. XIV. An allegation of excessive or disproportionate punishment is a legal claim
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 (Tex. Crim. App. 2016) (citing
Harmelin v. Michigan, 501 U.S. 957, 1001 (1991) (Kennedy, J., concurring)). A successful
challenge to proportionality is exceedingly rare and requires a finding of “gross
disproportionality.” Id. at 322–23 (citing Lockyer v. Andrade, 538 U.S. 63, 73 (2003)). 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.” Id. at 323 (citing Graham, 560 U.S. at 60). “In the rare case in which this
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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. “If this comparative analysis validates an initial judgment that the
sentence is grossly disproportionate, the sentence is cruel and unusual.” Id.
“Only twice has the Supreme Court held that a non-capital sentence imposed on
an adult was constitutionally disproportionate.” Id. (first citing Solem v. Helm, 463 U.S.
277 (1983) (holding that life imprisonment without parole was a grossly disproportionate
sentence for the crime of uttering a no-account check for $100); and then citing Weems
v. United States, 217 U.S. 349 (1910) (holding that fifteen years punishment in a prison
camp was grossly disproportionate to the crime of falsifying a public record)). A trial
court’s discretion to assess punishment within the statutory range is essentially
unfettered. Ex parte Chavez, 213 S.W.3d 320, 323 (Tex. Crim. App. 2006). Generally,
punishment assessed within the statutory limits is not excessive, cruel, or unusual. See
Trevino v. State, 174 S.W.3d 925, 928 (Tex. App.—Corpus Christi–Edinburg 2005, pet.
ref’d). Aggravated assault with a deadly weapon is a second-degree felony punishable by
imprisonment “for any term of not more than 20 years or less than 2 years.” TEX. PENAL
CODE ANN. § 12.33(a).
B. Preservation
“[We] may not reverse a judgment of conviction without first addressing the issue
of error preservation.” Darcy v. State, 488 S.W.3d 325, 328 (Tex. Crim. App. 2016) (first
citing Gipson v. State, 383 S.W.3d 152, 159 (Tex. Crim. App. 2012); and then citing
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Meadoux v. State, 325 S.W.3d 189, 193 n.5 (Tex. Crim. App. 2010)). To preserve 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).
C. Analysis
Isassi did not object in the trial court that his sentence was disproportionate to the
offense charged or unconstitutional in any manner. Furthermore, the trial court’s twenty-
year sentence falls within the statutory punishment range for a second-degree felony.
See TEX. PENAL CODE ANN. § 12.33(a). Accordingly, we hold that Isassi failed to preserve
this complaint for our review. See Trevino, 174 S.W.3d at 927–28 (“Because the sentence
imposed is within the punishment range and is not illegal, we conclude that the rights
[appellant] asserts for the first time on appeal are not so fundamental as to have relieved
him of the necessity of a timely, specific trial objection.”).
Even if we were to address Isassi’s Eighth Amendment claim and assume a
threshold inference of disproportionality, he presented no evidence in the trial court, and
presents no argument on appeal, “compar[ing] [his] sentence with the sentences received
by other offenders in the same jurisdiction and with the sentences imposed for the same
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crime in other jurisdictions.” Simpson, 488 S.W.3d at 323. Absent this comparative
analysis, we are unable to conclude that the sentences are grossly disproportionate. See
id.; Quick v. State, 557 S.W.3d 775, 789 (Tex. App.—Houston [14th Dist.] 2018, pet ref’d)
(concluding that twenty-year sentence for aggravated assault was not grossly
disproportionate); see also Esquivel v. State, No. 13-21-00179-CR, 2022 WL 17492274,
at *2 (Tex. App.—Corpus Christi–Edinburg Dec. 8, 2022, pet. ref’d) (mem. op., not
designated for publication) (rejecting Eighth Amendment challenge where appellant
offered no comparative evidence of sentences received by other offenders). We overrule
Isassi’s sole issue.
III. CONCLUSION
We affirm the trial court’s judgment.
L. ARON PEÑA
Justice
Do not publish.
TEX. R. APP. P. 47.2 (b).
Delivered and filed on the
8th day of June, 2023.
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