Damien Lee Escalera v. the State of Texas

Opinion

In the

Court of Appeals

Sixth Appellate District of Texas at Texarkana

No. 06-25-00166-CR

DAMIEN LEE ESCALERA, Appellant V.

THE STATE OF TEXAS, Appellee

On Appeal from the 297th District Court Tarrant County, Texas

Trial Court No. 1818597

Before Stevens, C.J., van Cleef and Rambin, JJ.

Memorandum Opinion by Justice van Cleef

MEMORANDUM OPINION

A Tarrant County jury found Damien Lee Escalera guilty of aggravated sexual assault of a child younger than six years old, a first-degree felony, and assessed a sentence of fifty years’ imprisonment. See TEX. PENAL CODE ANN. § 22.021 (Supp.). On appeal,1 Escalera argues that his sentence violates the Eighth Amendment’s2 prohibition on cruel and unusual punishment. The State argues that Escalera failed to preserve his sole point of error for appeal. Because we agree, we affirm the trial court’s judgment, which imposed the jury’s assessed sentence.

As a general rule, a constitutional claim must have been asserted in the trial court to be raised on appeal. See TEX. R. APP. P. 33.1(a). This rule of preservation applies to Eighth Amendment complaints. Burt v. State, 396 S.W.3d 574, 577 (Tex. Crim. App. 2013); Sample v. State, 405 S.W.3d 295, 304 (Tex. App.—Fort Worth 2013, pet. ref’d); see Russell v. State, 341 S.W.3d 526, 527–28 (Tex. App.—Fort Worth 2011, no pet.). The appellate record shows that Escalera failed to raise his Eighth Amendment complaint during sentencing or by motion for new trial. As a result, the trial court was not presented with Escalera’s complaint, and the issue is not preserved for our review.

1 Originally appealed to the Second Court of Appeals, this case was transferred to this Court by the Texas Supreme Court pursuant to its docket equalization efforts. See TEX. GOV’T CODE ANN. § 73.001 (Supp.). We follow the precedent of the Second Court of Appeals in deciding the issues presented. See TEX. R. APP. P. 41.3. 2 See U.S. CONST. amend. VIII.

3

Having overruled Escalera’s sole point of error on appeal, we affirm the trial court’s judgment.

Charles van Cleef

Justice

Date Submitted: July 15, 2026 Date Decided: July 29, 2026

Do Not Publish