Eighth Amendment violation in Texas

2023See Solis v. State, 945 S.W.2d 300, 301 (Tex. App.—Houston [1st Dist.] 1997, pet. ref’d) (defendant could not assert Eighth Amendment claim for first time on appeal).

2021P. 33.1(a)); see also Cantley v. State, No. 01-09-00048-CR, 2009 WL 3930782 , at *3–4 (Tex. App.—Houston [1st Dist.] Nov. 19, 2009, no pet.) (mem. op., not designated for publication) (holding that defendant waived Eighth Amendment claim by failing to object at punishment hearing or in motion for new trial); Wynn v. State, 219 S.W.3d 54, 61 (Tex. App.—Houston [1st Dist.] 2006, pet. ref’d) (same); Solis v. State, 945 S.W.2d 300 , 301–02 (Tex. App.—Houston [1st Dist.] 1997, pet. ref’d) (same).

2024App. 2023) (concluding Eighth Amendment issue arising in voir dire was not preserved with a contemporaneous objection); Curry v. State, 910 S.W.2d 490, 497 (Tex. Crim.

2023See id.; see also Rhoades, 934 S.W.2d at 119 (failure to raise Eighth Amendment issue in trial court or in motion for new trial fails to preserve error for appeal); Curry v. State, 910 S.W.2d 490, 497 (Tex. Crim.

2025Allen does not make an Eighth Amendment challenge, but as context for Barrow, it is worth noting that “[t]he Eighth Amendment, which forbids cruel and unusual punishments, contains a ‘narrow proportionality principle’ that ‘applies to noncapital sentences.’” Ewing v. California, 538 U.S. 11, 20 (2003) (plurality op.) (emphasis added) (quoting Harmelin v. Michigan, 501 U.S. 957 , 996–97 (1991) (Kennedy, J., concurring in part and concurring in judgment) (plurality op.)).

2025Allen does not make an Eighth Amendment challenge, but as context for Barrow, it is worth noting that “[t]he Eighth Amendment, which forbids cruel and unusual punishments, contains a ‘narrow proportionality principle’ that ‘applies to noncapital sentences.’” Ewing v. California, 538 U.S. 11, 20 (2003) (plurality op.) (emphasis added) (quoting Harmelin v. Michigan, 501 U.S. 957 , 996–97 (1991) (Kennedy, J., concurring in part and concurring in judgment) (plurality op.)).

2024Wilson v. Seiter, 501 U.S. 294, 304 (1991); Estelle v. Gamble, 429 U.S. 97,104 (1976) (recognizing that an Eighth Amendment violation may be premised upon a deliberate indifference to an inmate’s “serious medical needs”). 3 LISA J.

2024Wilson v. Seiter, 501 U.S. 294, 304 (1991); Estelle v. Gamble, 429 U.S. 97,104 (1976) (recognizing that an Eighth Amendment violation may be premised upon a deliberate indifference to an inmate’s “serious medical needs”). 3 LISA J.

2012Accord Nicholas v. State, 56 S.W.3d 760, 768 (Tex.App. -- Houston [14[th] Dist.] 2001, pet. ref'd); Solis v. State, 945 S.W.2d 300, 301 (Tex.App. -- Houston [1[st] Dist.] 1997, pet. ref'd).

2012Accord Nicholas v. State, 56 S.W.3d 760, 768 (Tex.App.—Houston [14th Dist.] 2001, pet. ref’d); Solis v. State, 945 S.W.2d 300, 301 (Tex.App.—Houston [1st Dist.] 1997, pet. ref’d).

2021See, e.g., Graham, 560 U.S. at 69 , 130 S. Ct. at 2027 (considering juvenile’s age and intent to commit the offense);15 Solem, 463 U.S. at 293–94, 103 S. Ct. at 3011 (noting defendant’s motive and intent to commit the offense); see also, e.g., Erickson v. State, No. 02-19-00287- CR, 2020 WL 4907364 , at *5 (Tex. App.—Fort Worth Aug. 20, 2020, pet. ref’d) (mem. op., not designated for publication) (noting acceptance of responsibility as well as “methodical and repetitive” nature of criminal conduct); Fulton v. State, No. 02-19-00227- CR, 2020 WL 3969851 , at *4 (Tex. App.—Fort Worth June 11, 20

2021See, e.g., Graham, 560 U.S. at 69 , 130 S. Ct. at 2027 (considering juvenile’s age and intent to commit the offense);15 Solem, 463 U.S. at 293–94, 103 S. Ct. at 3011 (noting defendant’s motive and intent to commit the offense); see also, e.g., Erickson v. State, No. 02-19-00287- CR, 2020 WL 4907364 , at *5 (Tex. App.—Fort Worth Aug. 20, 2020, pet. ref’d) (mem. op., not designated for publication) (noting acceptance of responsibility as well as “methodical and repetitive” nature of criminal conduct); Fulton v. State, No. 02-19-00227- CR, 2020 WL 3969851 , at *4 (Tex. App.—Fort Worth June 11, 20

2023See id.; see also Rhoades, 934 S.W.2d at 119 (failure to raise Eighth Amendment issue in trial court or in motion for new trial fails to preserve error for appeal); Curry v. State, 910 S.W.2d 490, 497 (Tex. Crim.

2023See Ware v. State, No. 05-22-00302-CR, 2023 WL 1431422 , at *1 (Tex. App.—Dallas Feb. 1, 2023, no pet. h.) (mem. op., not designated for publication) (holding that appellant failed to preserve claims under Eighth Amendment and Article I, Section 13 of Texas Constitution); Castaneda v. State, 135 S.W.3d 719, 723 (Tex. App.—Dallas 2003) (no pet.) (holding that appellant failed to preserve Eighth Amendment claim); see also Rhoades v. State, 934 S.W.2d 113, 120 (Tex. Crim.

2018Gonzalez’s third issue is overruled. 9 See also Arriaga v. State, 335 S.W.3d 331, 334 (Tex. App.—Houston [14th Dist.] 2010, pet. ref’d) (upholding life sentence for aggravated sexual assault of child against Eighth Amendment challenge where appellant failed to object to trial court); Ajisebutu v. State, 236 S.W.3d 309 , 311–13 (Tex. App.—Houston [1st Dist.] 2007, pet. ref’d) (holding Texas constitutional argument waived by defendant’s failure to object); Trevino v. State, 174 S.W.3d 925 , 927–28 (Tex. App.—Corpus Christi 2005, pet. ref’d) (holding Eighth Amendment argument was waived where sen

2018Gardiner pleaded “true” to 5 See also Arriaga v. State, 335 S.W.3d 331, 334 (Tex. App.—Houston [14th Dist.] 2010, pet. ref'd) (upholding life sentence for aggravated sexual assault of child against Eighth Amendment challenge where appellant failed to object to trial court); Ajisebutu v. State, 236 S.W.3d 309 , 311–13 (Tex. App.—Houston [1st Dist.] 2007, pet. ref’d) (holding Texas constitutional argument waived by defendant’s failure to object); Trevino v. State, 174 S.W.3d 925 , 927–28 (Tex. App.—Corpus Christi 2005, pet. ref’d) (explaining Eighth Amendment argument was waived where sentence w

2024Wilson v. Seiter, 501 U.S. 294, 304 (1991); Estelle v. Gamble, 429 U.S. 97,104 (1976) (recognizing that an Eighth Amendment violation may be premised upon a deliberate indifference to an inmate’s “serious medical needs”). 3 LISA J.

2024Wilson v. Seiter, 501 U.S. 294, 304 (1991); Estelle v. Gamble, 429 U.S. 97,104 (1976) (recognizing that an Eighth Amendment violation may be premised upon a deliberate indifference to an inmate’s “serious medical needs”). 3 LISA J.

2018Gonzalez’s third issue is overruled. 9 See also Arriaga v. State, 335 S.W.3d 331, 334 (Tex. App.—Houston [14th Dist.] 2010, pet. ref’d) (upholding life sentence for aggravated sexual assault of child against Eighth Amendment challenge where appellant failed to object to trial court); Ajisebutu v. State, 236 S.W.3d 309 , 311–13 (Tex. App.—Houston [1st Dist.] 2007, pet. ref’d) (holding Texas constitutional argument waived by defendant’s failure to object); Trevino v. State, 174 S.W.3d 925 , 927–28 (Tex. App.—Corpus Christi 2005, pet. ref’d) (holding Eighth Amendment argument was waived where sen

2018Gardiner pleaded “true” to 5 See also Arriaga v. State, 335 S.W.3d 331, 334 (Tex. App.—Houston [14th Dist.] 2010, pet. ref'd) (upholding life sentence for aggravated sexual assault of child against Eighth Amendment challenge where appellant failed to object to trial court); Ajisebutu v. State, 236 S.W.3d 309 , 311–13 (Tex. App.—Houston [1st Dist.] 2007, pet. ref’d) (holding Texas constitutional argument waived by defendant’s failure to object); Trevino v. State, 174 S.W.3d 925 , 927–28 (Tex. App.—Corpus Christi 2005, pet. ref’d) (explaining Eighth Amendment argument was waived where sentence w

2024App. P. 21.4(a); see also Kim v. State, 283 S.W.3d 473, 475 (Tex. App.— Fort Worth 2009, pet. ref’d) (discussing preservation requirements for Eighth Amendment challenge).

2022App. 1986); Kim v. State, 283 S.W.3d 473, 475 (Tex. App.—Fort Worth 2009, pet. ref’d); Noland v. State, 264 S.W.3d 144 , 151–52 (Tex. App.—Houston [1st Dist.] 2007, pet. ref’d) (concluding that the appellant’s failure to object at trial meant that an argument that the sentence was grossly disproportionate to offense was not preserved); see also Maza v. State, No. 13-14-00128-CR, 2015 WL 3637821 , at *2 (Tex. App.— Corpus Christi–Edinburg June 11, 2015, no pet.) (mem. op., not designated for publication) (prohibiting the appellant from making his Eighth Amendment violation argument for the firs

2015However, “[b]ecause the holding in Miller is limited to a prohibition on mandatory life without parole for juvenile offenders, [defendants] are not entitled to [new] punishment hearings.” See Lewis, 428 S.W.3d at 864 (addressing Eighth Amendment challenge).

2015However, “[b]ecause the holding in Miller is limited to a prohibition on mandatory life without parole for juvenile offenders, [defendants] are not entitled to [new] punishment hearings.” See Lewis, 428 S.W.3d at 864 (addressing Eighth Amendment challenge).

2005In addressing his Eighth Amendment claim, Appellant admits that there is confusion in the law regarding whether the Eighth Amendment contains a proportionality guarantee after the United States Supreme Court decision in Harmelin v. Michigan , 501 U.S. 957 , 111 S. Ct. 2680 (1991). 2 However, we have previously chosen to follow the United States Court of Appeals for the Fifth Circuit in applying a proportionality analysis in addressing Eighth Amendment proportionality complaints. 3 Moore v. State , 54 S.W.3d 529, 542 (Tex. App.—Fort Worth 2001, pet. ref’d).

2005In addressing his Eighth Amendment claim, Appellant admits that there is confusion in the law regarding whether the Eighth Amendment contains a proportionality guarantee after the United States Supreme Court decision in Harmelin v. Michigan , 501 U.S. 957 , 111 S. Ct. 2680 (1991). (footnote: 2) However, we have previously chosen to follow the United States Court of Appeals for the Fifth Circuit in applying a proportionality analysis in addressing Eighth Amendment proportionality complaints. (footnote: 3) Moore v. State , 54 S.W.3d 529, 542 (Tex. App.—Fort Worth 2001, pet. ref’d).

2012“An inmate’s disagreement with the kind of medical treatment that he has received is insufficient as a matter of law to state an Eighth Amendment violation.” Khoshdel v. Goosby Page 9 County of El Paso v. Dorado, 180 S.W.3d 854, 868 (Tex. App.—El Paso 2005, pet. denied) (citing Norton v. Dimazana, 122 F.3d 286, 291 (5th Cir. 1997), and Young v. Gray, 560 F.2d 201, 201 (5th Cir. 1977)); see Lagaite v. Uy, 347 S.W.3d 890, 892 (Tex. App.—Amarillo 2011, no pet.) (“While it is true that inmates are entitled to medical care, they are not entitled to the type of care they choose.”) (citations omitted

2012“An inmate’s disagreement with the kind of medical treatment that he has received is insufficient as a matter of law to state an Eighth Amendment violation.” Khoshdel v. Goosby Page 9 County of El Paso v. Dorado, 180 S.W.3d 854, 868 (Tex. App.—El Paso 2005, pet. denied) (citing Norton v. Dimazana, 122 F.3d 286, 291 (5th Cir. 1997), and Young v. Gray, 560 F.2d 201, 201 (5th Cir. 1977)); see Lagaite v. Uy, 347 S.W.3d 890, 892 (Tex. App.—Amarillo 2011, no pet.) (“While it is true that inmates are entitled to medical care, they are not entitled to the type of care they choose.”) (citations omitted

2012“An inmate’s disagreement with the kind of medical treatment that he has received is insufficient as a matter of law to state an Eighth Amendment violation.” Khoshdel v. Goosby Page 9 County of El Paso v. Dorado, 180 S.W.3d 854, 868 (Tex. App.—El Paso 2005, pet. denied) (citing Norton v. Dimazana, 122 F.3d 286, 291 (5th Cir. 1997), and Young v. Gray, 560 F.2d 201, 201 (5th Cir. 1977)); see Lagaite v. Uy, 347 S.W.3d 890, 892 (Tex. App.—Amarillo 2011, no pet.) (“While it is true that inmates are entitled to medical care, they are not entitled to the type of care they choose.”) (citations omitted

2012“An inmate’s disagreement with the kind of medical treatment that he has received is insufficient as a matter of law to state an Eighth Amendment violation.” Khoshdel v. Goosby Page 9 County of El Paso v. Dorado, 180 S.W.3d 854, 868 (Tex. App.—El Paso 2005, pet. denied) (citing Norton v. Dimazana, 122 F.3d 286, 291 (5th Cir. 1997), and Young v. Gray, 560 F.2d 201, 201 (5th Cir. 1977)); see Lagaite v. Uy, 347 S.W.3d 890, 892 (Tex. App.—Amarillo 2011, no pet.) (“While it is true that inmates are entitled to medical care, they are not entitled to the type of care they choose.”) (citations omitted

2012“An inmate’s disagreement with the kind of medical treatment that he has received is insufficient as a matter of law to state an Eighth Amendment violation.” Khoshdel v. Goosby Page 9 County of El Paso v. Dorado, 180 S.W.3d 854, 868 (Tex. App.—El Paso 2005, pet. denied) (citing Norton v. Dimazana, 122 F.3d 286, 291 (5th Cir. 1997), and Young v. Gray, 560 F.2d 201, 201 (5th Cir. 1977)); see Lagaite v. Uy, 347 S.W.3d 890, 892 (Tex. App.—Amarillo 2011, no pet.) (“While it is true that inmates are entitled to medical care, they are not entitled to the type of care they choose.”) (citations omitted

2012“An inmate’s disagreement with the kind of medical treatment that he has received is insufficient as a matter of law to state an Eighth Amendment violation.” Khoshdel v. Goosby Page 9 County of El Paso v. Dorado, 180 S.W.3d 854, 868 (Tex. App.—El Paso 2005, pet. denied) (citing Norton v. Dimazana, 122 F.3d 286, 291 (5th Cir. 1997), and Young v. Gray, 560 F.2d 201, 201 (5th Cir. 1977)); see Lagaite v. Uy, 347 S.W.3d 890, 892 (Tex. App.—Amarillo 2011, no pet.) (“While it is true that inmates are entitled to medical care, they are not entitled to the type of care they choose.”) (citations omitted

2009See Mullins, 208 S.W.3d at 470-71 .

2009See Mullins, 208 S.W.3d at 470-71 .

2008App. 1994) (failure to raise Eighth Amendment objection at trial waives any such claim on appeal)); Quintana v. State , 777 S.W.2d 474, 479 (Tex. App.-Corpus Christi 1989, pet. ref'd) (holding that failure to object to a sentence as cruel and unusual forfeits error). 16.

2008App. 1994) (failure to raise Eighth Amendment objection at trial waives any such claim on appeal)); 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 violative of the Eighth Amendment was forfeited by failure to object); Quintana v. State , 777 S.W.2d 474, 479 (Tex. App.-Corpus Christi 1989, pet. ref'd) (holding that failure to object to a sentence as cruel and unusual forfeits error).

2021See, e.g., Graham, 560 U.S. at 69 , 130 S. Ct. at 2027 (considering juvenile’s age and intent to commit the offense);15 Solem, 463 U.S. at 293–94, 103 S. Ct. at 3011 (noting defendant’s motive and intent to commit the offense); see also, e.g., Erickson v. State, No. 02-19-00287- CR, 2020 WL 4907364 , at *5 (Tex. App.—Fort Worth Aug. 20, 2020, pet. ref’d) (mem. op., not designated for publication) (noting acceptance of responsibility as well as “methodical and repetitive” nature of criminal conduct); Fulton v. State, No. 02-19-00227- CR, 2020 WL 3969851 , at *4 (Tex. App.—Fort Worth June 11, 20

2021See, e.g., Graham, 560 U.S. at 69 , 130 S. Ct. at 2027 (considering juvenile’s age and intent to commit the offense);15 Solem, 463 U.S. at 293–94, 103 S. Ct. at 3011 (noting defendant’s motive and intent to commit the offense); see also, e.g., Erickson v. State, No. 02-19-00287- CR, 2020 WL 4907364 , at *5 (Tex. App.—Fort Worth Aug. 20, 2020, pet. ref’d) (mem. op., not designated for publication) (noting acceptance of responsibility as well as “methodical and repetitive” nature of criminal conduct); Fulton v. State, No. 02-19-00227- CR, 2020 WL 3969851 , at *4 (Tex. App.—Fort Worth June 11, 20

2024P. 33.1(a) (stating that to preserve error, record must show complaint to trial court by timely request, objection, or motion that specifically stated grounds for ruling sought, and trial court ruled on request); Noland v. State, 264 S.W.3d 144, 152 (Tex. App.—Houston [1st Dist.] 2007, pet. ref’d) (requiring objection that specifically states legal basis for complaint to preserve Eighth Amendment challenge to sentence).

2022App. 1986); Kim v. State, 283 S.W.3d 473, 475 (Tex. App.—Fort Worth 2009, pet. ref’d); Noland v. State, 264 S.W.3d 144 , 151–52 (Tex. App.—Houston [1st Dist.] 2007, pet. ref’d) (concluding that the appellant’s failure to object at trial meant that an argument that the sentence was grossly disproportionate to offense was not preserved); see also Maza v. State, No. 13-14-00128-CR, 2015 WL 3637821 , at *2 (Tex. App.— Corpus Christi–Edinburg June 11, 2015, no pet.) (mem. op., not designated for publication) (prohibiting the appellant from making his Eighth Amendment violation argument for the firs

1995An Eighth Amendment analysis of the Texas scheme logically follows from this Court's decision in Matson, 819 *883 S.W.2d 839 (Eighth Amendment basis), and the heightened reliability requirement of Lockett, 438 U.S. at 586 , 98 S.Ct. at 2955 , and Eddings, 455 U.S. at 104 , 102 S.Ct. at 871 , as applied to Texas in Jurek, 428 U.S. at 262 , 96 S.Ct. at 2951-52 , Franklin, 487 U.S. at 164 , 108 S.Ct. at 2321-22, and Penry, 492 U.S. at 302 , 109 S.Ct. at 2937-38.

1995An Eighth Amendment analysis of the Texas scheme logically follows from this Court's decision in Matson, 819 *883 S.W.2d 839 (Eighth Amendment basis), and the heightened reliability requirement of Lockett, 438 U.S. at 586 , 98 S.Ct. at 2955 , and Eddings, 455 U.S. at 104 , 102 S.Ct. at 871 , as applied to Texas in Jurek, 428 U.S. at 262 , 96 S.Ct. at 2951-52 , Franklin, 487 U.S. at 164 , 108 S.Ct. at 2321-22, and Penry, 492 U.S. at 302 , 109 S.Ct. at 2937-38.

2008(I disagree, however, that the reason it should be denied is that his "Eighth Amendment claim has no merit[.]" Ex parte Chi, 256 S.W.3d at 704.

2008(I disagree, however, that the reason it should be denied is that his "Eighth Amendment claim has no merit[.]" Ex parte Chi, 256 S.W.3d at 704.

2024See Castaneda v. State, 135 S.W.3d 719, 724 (Tex. App.—Dallas 2003, no pet.) (rejecting argument that appellate court should consider defendant’s punishment for burglary of a habitation, enhanced by two prior felony convictions, “as if not enhanced with” his prior burglary of vehicle conviction because burglary of a vehicle is now a class A misdemeanor). 11 Westerman’s five- and twenty-year sentences were for his two burglary offenses.

2023See Ware v. State, No. 05-22-00302-CR, 2023 WL 1431422 , at *1 (Tex. App.—Dallas Feb. 1, 2023, no pet. h.) (mem. op., not designated for publication) (holding that appellant failed to preserve claims under Eighth Amendment and Article I, Section 13 of Texas Constitution); Castaneda v. State, 135 S.W.3d 719, 723 (Tex. App.—Dallas 2003) (no pet.) (holding that appellant failed to preserve Eighth Amendment claim); see also Rhoades v. State, 934 S.W.2d 113, 120 (Tex. Crim.

2014If appellant’s issue raises an assertion his punishment was grossly disproportionate, under Eighth Amendment analysis, to the offense for which he was convicted, we cannot agree with the assertion. “[T]he Eighth Amendment has been read to preclude a sentence that is greatly disproportionate to the offense, because such sentences are cruel and unusual.” McGruder v. Puckett, 954 F.2d 313, 315 (5th Cir. 1992) (internal quotation marks omitted).

2002Appellant relies on the opinion in McGruder v. Puckett, 954 F.2d 313 (5th Cir. 1992), in support of his Eighth Amendment claim.

2020Eighth Amendment Complaint “To preserve for appellate review a complaint that a sentence is grossly disproportionate, constituting 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.” Navarro v. 15 State, 588 S.W.3d 689 , 690 (Tex. App.—Texarkana 2019, no pet.) (quoting Russell v. State, 341 S.W.3d 526, 527 (Tex. App.—Fort Worth 2011, no pet.)); see Williams v. State, 191 S.W.3d 242, 262 (Tex. App.—Austin 2006, no pet.) (a defendant must preserve an Eighth Amendment claim).

2020Eighth Amendment Complaint “To preserve for appellate review a complaint that a sentence is grossly disproportionate, constituting 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.” Navarro v. 15 State, 588 S.W.3d 689 , 690 (Tex. App.—Texarkana 2019, no pet.) (quoting Russell v. State, 341 S.W.3d 526, 527 (Tex. App.—Fort Worth 2011, no pet.)); see Williams v. State, 191 S.W.3d 242, 262 (Tex. App.—Austin 2006, no pet.) (a defendant must preserve an Eighth Amendment claim).