Jorge Alberto Zelaya v. State

Opinion issued April 29, 2010. In The Court of Appeals For The First District of Texas NO. 01-09-00376-CR NO. 01-09-00377-CR NO. 01-09-00378-CR JORGE ALBERTO ZELAYA, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 209th District Court Harris County, Texas Trial Court Cause Nos. 1132278, 1132279, 1132280 MEMORANDUM OPINION Appellant, Jorge Alberto Zelaya, appeals from a judgment assessing his punishment at three life sentences to run concurrently for aggravated sexual assault of a child, Tex. Penal Code Ann. § 22.021 (Vernon Supp. 2008); aggravated robbery, Tex. Penal Code Ann. § 22.021 (Vernon Supp. 2008); and burglary of a habitation with intent to commit aggravated sexual assault of a child, Tex. Penal Code Ann. § 30.02 (Vernon 2003). Appellant pleaded guilty to all three counts, and punishment was assessed by the court. In two related issues on appeal, appellant contends that the court’s assessment of “three life sentences violates the Eighth Amendment of the United States Constitution and Article I, section 13 of the Texas Constitution because they are disproportionate to the crimes committed by appellant.” We affirm. BACKGROUND Appellant pleaded guilty to aggravated sexual assault of a child, aggravated robbery, and burglary of a habitation with intent to commit aggravated sexual assault of a child. Appellant admitted to having broken into sixteen-year-old E.G.’s house and sexually assaulting her at knifepoint on September 6, 2007. During the commission of this offense, appellant caused bodily injury to another child younger than fifteen years of age by grabbing the child’s neck and throwing him to the ground. At the punishment hearing, P.H., who had also been sexually assaulted by appellant, testified that when she arrived home from school on August 29, 2007, she found appellant burglarizing her house. Appellant demanded money from her. When P.H. told appellant that she did not have any money, appellant told her that she was “going to have to pay him with something else.” Appellant subsequently tore off P.H’s clothes, tied her to the bed, and sexually assaulted her. P.H. managed to untie herself and locked herself in her sister’s room, but appellant knocked down the door. When P.H. was taken to the hospital, she was treated for a tear on her vagina along with bruises and swelling. P.H. also suffered linear bleeding. The Houston Police Department Crime Lab identified appellant as the source of the semen that was found in P.H.’s vagina. The trial court assessed punishment at life imprisonment on each of the three offenses. Upon sentencing, appellant told the trial court, “I think it’s too much time.” Appellant’s counsel did not object. PRESERVATION OF ERROR Appellant contends that “the dialogue he had with the trial court immediately upon hearing the judge assess three life sentences preserved for appellate review the constitutionality of the life sentences.” In this case, appellant was charged with and pleaded guilty to aggravated sexual assault of a child, aggravated robbery, and burglary of a habitation with intent to commit aggravated sexual assault of a child. Tex. Penal Code Ann. §§ 22.021, 29.03, 30.02. The punishment for a first-degree felony is confinement for life or any term of not more than ninety-nine years or less than five years. Id. §12.32 (Vernon 2003). As noted above, the court assessed punishment at life in prison for all three first-degree felonies. Thus, appellant received a punishment within the applicable statutory range. The Eighth Amendment of the United States Constitution requires that a criminal sentence be proportionate to the crime for which a defendant has been convicted. Solem v. Helm, 463 U.S. 277, 290, 103 S. Ct. 3001, 3009 (1983); see also Baldridge v. State, 77 S.W.3d 890, 893 (Tex. App.—Houston [14th Dist.] 2002, pet. ref’d) (stating that Eighth Amendment has narrow proportionality principle). However, 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. Tex. R. App. P. 33.1(a); Rhoades v. State, 934 S.W.2d 113, 120 (Tex. Crim. App. 1996) (noting that defendant waived any error because he presented argument for first time on appeal); Wynn v. State, 219 S.W.3d 54, 61 (Tex. App.—Houston [1st Dist.] 2006, no pet.) (holding that defendant’s failure to object to life sentence as cruel and unusual punishment waived error); Solis v. State, 945 S.W.2d 300, 301 (Tex. App.—Houston [1st Dist.] 1997, pet. ref’d) (holding that defendant could not assert cruel and unusual punishment for first time on appeal). After the trial court announced its sentence at the punishment hearing, appellant voiced his sole objection to the maximum punishment by stating, “I think it’s too much time.” Appellant made this objection; defense counsel made no objection, despite the judge’s asking twice if there was anything else counsel would like to say. In Rezac v. State, the Texas Court of Criminal Appeals stated that “[i]n order for an issue to be preserved on appeal, there must be a timely objection which specifically states the legal basis for the objection.” 782 S.W.2d 869, 870 (Tex. Crim. App. 1990); see also Rhoades, 934 S.W.2d at 119 (reasoning that one must specifically state legal basis for objection as well). At no time did appellant argue that his sentence violated the Eighth Amendment of the United States Constitution or Article 1, Section 13 of the Texas Constitution. Appellant’s only statement was, “I think it is too much time.” Accordingly, we hold that appellant has failed to preserve his error for appeal on this issue.[1] GROSSLY DISPROPORTIONATE SENTENCES Furthermore, even if the appellant had preserved the issue, the sentences did not constitute cruel and unusual punishment. Eighth Amendment In point of error number one, appellant contends that his triple life sentences are unconstitutional under the Eighth Amendment to the United States Constitution. Appellant argues that his punishment was so disproportionate to his crimes that it constituted cruel and unusual punishment under the Eighth Amendment. The statutory punishment for a first-degree felony is confinement for life or any term of not more than ninety-nine years or less than five years. Tex. Penal Code Ann. § 12.32. The court assessed the maximum punishment in these cases. “Although a sentence may be within the range permitted by statute, it may nonetheless run afoul of the Eighth Amendment prohibition against cruel and unusual punishment.” Solem, 463 U.S. at 290, 103 S. Ct. at 3009 (1983); Diaz-Galvan v. State, 942 S.W.2d 185, 186 (Tex. App.—Houston [1st Dist.] 1997, pet. ref’d). The Supreme Court has set forth objective factors to be considered in reviewing the proportionality of a sentence under the Eighth Amendment: (1) the gravity of the offense and the harshness of the penalty; (2) the sentences imposed on other criminals in the same jurisdiction; and (3) the sentences imposed for commission of the same crime in other jurisdictions. See Solem, 463 U.S. at 290-91, 103 S. Ct. at 3011. In reconsidering its Solem analysis, a majority of the Court concluded that punishment will be grossly disproportionate to a crime only when an objective comparison of the gravity of the offense against the severity of the sentence reveals the sentence to be extreme. Harmelin v. Michigan, 501 U.S. 957, 1105, 111 S. Ct. 2680, 2707 (1991). In McGruder v. Puckett, the Fifth Circuit Court of Appeals analyzed Harmelin and concluded that courts must “initially make a threshold comparison of the gravity of [the] offenses against the severity of [the] sentence.” 954 F.2d 313, 316 (5th Cir. 1992) “Only if we infer that the sentence is grossly disproportionate to the offense will we then consider the remaining factors of the Solem test and compare the sentence received to (1) sentences for similar crimes in the same jurisdiction and (2) sentences for the same crime in other jurisdictions.” Id. A threshold proportionality analysis requires a comparison of the gravity of the crime with the severity of the sentence. Harmelin, 501 U.S. at 1005, 111 S. Ct. at 2707; McGruder, 954 F.2d at 316 . This Court will review a sentence to determine whether it is grossly disproportionate to the crime. See Harmelin, 501 U.S. at 1005, 111 S.Ct. at 2707. In determining whether a sentence is grossly disproportionate, we consider not only the present offense, but also appellant’s criminal history. Buster v. State, 144 S.W.3d 71, 81 (Tex. App.—Tyler 2004, no pet.); Culton v. State, 95 S.W.3d 401, 403–04 (Tex. App.—Houston [1st Dist.] 2002, pet. ref’d). Gravity of the Offenses We judge the gravity of the offense in light of the harm caused or threatened to society and the offender’s culpability. Moore v. State, 54 S.W.3d 529, 542 (Tex. App.—Fort Worth 2001, pet. ref’d). Appellant pleaded guilty to aggravated sexual assault of a child, aggravated robbery, and burglary of a habitation with intent to commit aggravated sexual assault of a child. Tex. Penal Code Ann. §§ 22.021, 29.03, 30.02. All of these offenses are first degree felonies, and appellant received three life sentences to be served concurrently, which is at the maximum punishment allowed for each offense. The evidence shows that appellant sexually assaulted two minors and physically assaulted another minor. Each of these assaults was committed while appellant was burglarizing a home. The harm to the victims of these assaults is evident, as well as the threat to society. In his defense, appellant argued that his culpability for the crimes was lessened because he was addicted to drugs and started robbing people to pay for his habit. While he may have turned to burglary and robbery to support his drug habit, his culpability for the sexual assaults is not lessened by such evidence. The Texas Legislature has indicated a strong desire to punish those who sexually assault children by passing laws allowing consecutive sentences for multiple offenses committed during the same episode. See Tex. Penal Code Ann. § 3.03(b)(2)(A) (Vernon 2003). Therefore, given the violent nature and heinousness of the offenses, we conclude that the appellant’s sentences are not grossly disproportionate to the offenses. Dale v. State, 170 S.W.3d 797, 800 (Tex. App.—Fort Worth 2005, no pet.); Bailey v. State, No. 14-01-00486-CR, 2002 WL 122295, at *2 (Tex. App.—Houston [14th Dist.] Jan. 31, 2002, no pet.) (holding that “[b]y making the aggravated sexual assault of a child a first degree felony, the legislature has identified the crime as among the most heinous acts addressed in the penal code. And rightfully so; the impact on the victim emotionally, physically, and psychologically is often quite severe and lifelong. With that in mind, the . . . sentences imposed by the court in these cases do not seem grossly disproportionate to the crimes committed.”). Harshness of the Penalties When conducting an Eighth Amendment proportionality analysis, we may consider the sentence imposed in light of the accused’s other offenses. Culton, 95 S.W.3d at 403. Here, appellant pleaded guilty to aggravated sexual assault of a child, aggravated robbery, and burglary of a habitation with intent to commit aggravated sexual assault of a child. At punishment, the State presented extraneous offense evidence that appellant had burglarized another home and sexually assaulted a minor therein, while holding a knife to her throat. In light of the seriousness of and violence involved in the crimes to which appellant pleaded guilty, as well the evidence of other similar extraneous offenses, appellant’s sentences are not unduly harsh. In sum, after weighing the gravity of the offenses against the harshness of the penalties assessed, we conclude that appellant’s life sentences are not grossly disproportionate to the offenses that he committed. Because appellant has not passed the threshold determination that his sentence was grossly disproportionate, we do not discuss the remaining Solem factors. Article I, Section 13 of the Texas Constitution In point of error two, appellant also advances the same complaint, relying on Article I, section 13 of the Texas Constitution. It has long been recognized that if the punishment assessed is within the range of punishment established by the Legislature under its constitutional authority, there is no violation of the state constitutional provisions against cruel and unusual punishment. McNew v. State, 608 S.W.2d 166, 174 (Tex. Crim. App. 1978); Samuel v. State, 477 S.W.2d 611, 614 (Tex. Crim. App. 1972); Francis v. State, 877 S.W.2d 441, 444 (Tex. App.—Austin 1994, pet. ref’d); Johnson v. State, 864 S.W.2d 708, 725 (Tex. App.—Dallas 1993), aff’d, 912 S.W.2d 227 (Tex. Crim. App. 1995). Normally, under these circumstances, it is not within the province of an appellate court to pass upon the propriety of the sentence. Gonzales v. State, 386 S.W.2d 139, 140 (Tex. Crim. App. 1965). Appellant, in his brief, concedes that the three life sentences imposed by the trial court were within the range of the punishment authorized by the Texas Legislature for first degree felonies. Because the punishment was assessed within the range of punishment established by the Legislature under its constitutional authority, there is no violation of the state constitutional provisions against cruel and unusual punishment. McNew, 608 S.W.2d at 174; Samuel, 477 S.W.2d at 614; Francis, 877 S.W.2d at 444; Johnson, 864 S.W.2d at 725. CONCLUSION Accordingly, we overrule appellant’s points of error one and two. We affirm the judgments of the trial court. Sherry Radack Chief Justice Panel consists of Chief Justices Radack and Justices Alcala and Higley. Do not publish. Tex. R. App. P. 47.2(b) [1] Moveover, we note that appellant’s counsel did not object. A criminal defendant is not entitled to hybrid representation. See Robinson v. State, 240 S.W.3d 919, 922 (Tex. Crim. App. 2007).