Byron Lewis v. the State of Texas

In The
Court of Appeals
Seventh District of Texas at Amarillo

No. 07-25-00050-CR

BYRON LEWIS, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE

On Appeal from the Criminal District Court 4
Tarrant County, Texas1
Trial Court No. 1794200, Honorable Andy Porter, Presiding

March 20, 2026
MEMORANDUM OPINION
Before PARKER, C.J., and DOSS and YARBROUGH, JJ.

Appellant, Byron Lewis, appeals from his two convictions for aggravated assault

with a deadly weapon, both second-degree felonies.2 Via a single issue, Appellant

contends his concurrent eight-year sentences are grossly disproportionate to the offenses

1 This matter was transferred from the Second Court of Appeals in Fort Worth pursuant to a docket

equalization order of the Supreme Court of Texas. We apply the Second Court’s precedent to the extent it
conflicts with our own. See TEX. R. APP. P. 41.3.
2 See TEX. PENAL CODE § 22.02(a)(2).
and violate the Eighth Amendment’s prohibition against cruel and unusual punishment.

We affirm.

BACKGROUND

A grand jury indicted Appellant for two counts of aggravated assault with a deadly

weapon arising from the same incident in which he threatened two individuals at gunpoint.

The indictment also alleged a 2007 felony conviction for possession of a controlled

substance. Appellant entered an open plea on both offenses, with the trial court to assess

punishment. After a brief hearing that included testimony and a presentence investigation

report, the trial court sentenced Appellant to eight years of confinement on each charge,

to run concurrently.

Appellant filed a motion for new trial alleging that his sentence was grossly

disproportionate to the facts of the case and reflected no consideration of mitigating

evidence, in violation of federal and state constitutional prohibitions against cruel and

unusual punishment. No order on the motion appears in the record.

CRUEL AND UNUSUAL PUNISHMENT

A. Standard of Review and Applicable Law

We review a sentencing determination for an abuse of discretion. Jackson v.

State, 680 S.W.2d 809, 814 (Tex. Crim. App. 1984). Generally, a sentence assessed

within the legislatively determined range will not be found unconstitutional. Ex parte

Chavez, 213 S.W.3d 320, 323–24 (Tex. Crim. App. 2006) (noting that “the sentencer’s

discretion to impose any punishment within the prescribed range [is] essentially

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‘unfettered’”); Foster v. State, 525 S.W.3d 898, 912 (Tex. App.—Dallas 2017, pet. ref’d).

The punishment range for a second-degree felony is imprisonment for any term of not

more than twenty years or less than two years. TEX. PENAL CODE § 12.32.

A narrow exception exists: a sentence may constitute cruel and unusual

punishment, despite falling within the statutory range, if it is grossly disproportionate to

the offense. Alvarez v. State, 525 S.W.3d 890, 892 (Tex. App.—Eastland 2017, pet. ref’d)

(citing Solem v. Helm, 463 U.S. 277, 287 (1983)). An allegation of excessive or

disproportionate punishment is a legal claim embodied in the Constitution’s ban on cruel

and unusual punishment. It is 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) (cleaned up); see U.S. CONST. amend. VIII (“Excessive

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

punishments inflicted.”). Outside the capital punishment context, however, a successful

proportionality challenge is “exceedingly rare.” Simpson, 488 S.W.3d 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

its severity 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. In

the rare case where this threshold comparison leads to an inference of gross

disproportionality, the court should then compare the defendant’s sentence with

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

imposed for the same crime in other jurisdictions. Id. If this comparative analysis

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validates the initial judgment that the sentence is grossly disproportionate, the sentence

is cruel and unusual. Id.

To preserve a complaint that a sentence is grossly disproportionate or 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. TEX. R.

APP. P. 33.1(a); see Smith v. State, 721 S.W.2d 844, 855 (Tex. Crim. App. 1986) (“It is

well settled that almost every right, constitutional and statutory, may be waived by the

failure to object.”). When the sentence imposed is within the punishment range and not

illegal, the failure to specifically object in open court or in a post-trial motion waives any

error on appeal. Noland v. State, 264 S.W.3d 144, 151 (Tex. App.—Houston [1st Dist.]

2007, pet. ref’d). An appellant may preserve an issue through a motion for new trial. But

filing the motion is not enough; he must bring it to the trial court’s attention. Carranza v.

State, 960 S.W.2d 76, 79–80 (Tex. Crim. App. 1998).

B. Analysis

Although Appellant raised the disproportionate-sentence claim in a motion for new

trial, nothing in the record indicates he presented the motion to the trial court in a manner

sufficient to bring the issue to its attention. Nor did Appellant object when the sentence

was pronounced. Accordingly, he failed to preserve this issue for appellate review. See

TEX. R. APP. P. 33.1; Carranza, 960 S.W.2d at 79–80.

Even if preserved, the record does not support Appellant’s claim. The presentence

investigation report indicated that Appellant drew a firearm on two store employees at a

location he had previously been told not to return to. A search of his vehicle recovered

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several narcotics. Appellant had six prior misdemeanor convictions, including an assault,

and two prior felony convictions for drug possession. The trial court also revoked his

bond for alleged cocaine use. Given these aggravating factors, we could not conclude

that his eight-year sentences are grossly disproportionate.

CONCLUSION

We affirm the trial court’s judgment.

Lawrence M. Doss
Justice

Do not publish.

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