NUMBER 13-17-00519-CR

                            COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                     CORPUS CHRISTI - EDINBURG


JEFFREY DAVIS CAMPBELL JR.,                                                 Appellant,

                                              v.

THE STATE OF TEXAS,                                                         Appellee.


                   On appeal from the 24th District Court
                        of Victoria County, Texas.


                       MEMORANDUM OPINION

       Before Justices Contreras, Longoria, and Hinojosa
           Memorandum Opinion by Justice Hinojosa
      Appellant Jeffrey Davis Campbell Jr. appeals his conviction, following a jury trial,

for online solicitation of a minor, a second-degree felony. See TEX. PENAL CODE ANN.

§ 33.021(c), (f) (West, Westlaw through 2017 1st C.S.).       The trial court sentenced

Campbell to confinement for five years, plus a $10,000 fine. See id. § 12.33 (West,
Westlaw through 2017 1st C.S.). In his sole issue, Campbell complains that the trial

court erred in the assessed punishment because it was cruel and unusual for the alleged

offense. We affirm.

                                            I. BACKGROUND

        Campbell, twenty-nine years old at the time, was engaged in sexually explicit,

online chats with a person whom he believed to be a fourteen year old female named

Rachel.     In fact, Rachel was impersonated by Sergeant Dara Bowling, a criminal

investigator with the Texas Attorney General’s Office. Campbell was charged by a grand

jury indictment with one count of the online solicitation of a minor. See id. § 33.021(c).

During trial, the State produced evidence to support the alleged offense against

Campbell. 1 The State’s evidence consisted of screen shots from an online chat program

called “Whisper” and testimony from Sergeant Bowling. Exhibit number two showed a

message from Sergeant Bowling to Campbell claiming Rachel was fourteen. Exhibit

number three showed an entire text log between Sergeant Bowling and Campbell.

Sergeant Bowling’s trial testimony corroborated these texts:

        Q [State’s counsel]:             Now, at 6:08 [on April 27, 2016] what does the
                                         defendant text you?

        A [Sergeant Bowling]:            Are you really 14?

        Q [State’s counsel]:             When the defendant asks you are you really 14,
                                         what is your response at 6:08?

        A [Sergeant Bowling]:            I say, yeah, but I will be 15 in July.

        Q [State’s counsel]:             And what is the defendant’s response after you
                                         confirm that you’re 14?

        1The State submitted numerous exhibits and testimony at trial that are not at issue in this appeal.
The relevant evidence here are exhibits two and three and the testimony of Sergeant Bowling.
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      A [Sergeant Bowling]:      Cool. I don’t mind if you don’t.

      Q [State’s counsel]:       And then at 6:09 p.m. what does the defendant
                                 say also?

      A [Sergeant Bowling]:      You’re what I’ve always wanted.

      Q [State’s counsel]:       Now, at 6:10 p.m. what does the defendant text
                                 you?

      A [Sergeant Bowling]:      Could we go on a date one day? Because . . .
                                 Oh, it looks like he had replied to my previous
                                 text of asking him why do you say that. He said
                                 because you just are.
      ....

      Q [State’s counsel]:       Now, at 5 p.m. [on May 17, 2016] what does the
                                 defendant text you?

      A [Sergeant Bowling]:      He says when you feel my warm dick go in your
                                 body you’ll know what all the fuss is about.

      Q [State’s counsel]:       And also at 5:16 what does the defendant say?

      A [Sergeant Bowling]:      This really is my ultimate sexual fantasy, I hope
                                 you’re serious.

      Q [State’s counsel]:       Now, at 5:41 p.m. what does the defendant text
                                 you?

      A [Sergeant Bowling]:      He [Campbell] texts if anything bad happens
                                 you told me you were 18.

      The jury returned a guilty verdict against Campbell. This appeal followed.

                                     II. DISCUSSION

      Campbell’s sole issue is that the trial court erred when it assessed punishment that

was cruel and unusual.        According to Campbell, he did not believe he was

communicating online with an adult female, but was participating in a fantasy-type game


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called “age play.” Further, he notes that he suffers from cystic fibrosis, a debilitating

disease that will shorten his life span and, because of this, his sentence should be

probated for a term of ten years community supervision. He concedes that he did not

object to his sentence in the trial court.

        We review the trial court’s assessment of punishment for an abuse of discretion.

See Quintana v. State, 777 S.W.2d 474, 479–80 (Tex. App.—Corpus Christi 1989, writ

ref’d). The Eighth Amendment of the United States Constitution states that “excessive

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

inflicted.”   U.S. CONST. amend. VIII.       To preserve a complaint of disproportionate

sentencing, the criminal defendant must make a timely, specific objection to the trial court

or raise the issue in a motion for new trial. Trevino v. State, 174 S.W.3d 925, 927–28

(Tex. App.—Corpus Christi 2005, pet. ref’d). Failure to preserve error this way results in

a waiver of a criminal defendant’s Eighth Amendment right. Fuller v. State, 253 S.W.3d
220, 232 (Tex. Crim. App. 2008)

        Here, Campbell did not object when the trial court pronounced his sentence, and

he did not raise the issue in a motion for new trial.       Therefore, Campbell has not

preserved this issue for our review. See TEX. R. APP. P. 33.1(a). Regardless, we note

that even had Campbell preserved this issue, his five-year sentence and $10,000 fine

were within the range of punishment prescribed by statute for a second-degree felony

conviction. See TEX. PENAL CODE ANN. § 12.33. And punishments within the statutory

limit are generally not found to be excessive, cruel, or unusual. See State v. Simpson,

488 S.W.3d 318, 323 (Tex. Crim. App. 2016); see also Ex parte Chavez, 213 S.W.3d 320,


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323–24 (Tex. Crim. App. 2006) (explaining that the trial court’s discretion to impose a

sentence within the statutory range is “essentially unfettered”).   Campbell’s issue is

overruled.

                                      III. CONCLUSION

       The trial court’s judgment is affirmed.

                                                            LETICIA HINOJOSA
                                                            Justice

Do not publish.
TEX. R. APP. P. 47.2(b).

Delivered and filed the
21st day of June, 2018.




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