Freeman, Antron Dewitt v. State

Affirmed and Memorandum Opinion filed April 24, 2003 Affirmed and Memorandum Opinion filed April 24, 2003. In The Fourteenth Court of Appeals ____________ NOS. 14-02-00616-CR 14-02-00617-CR ____________ ANTRON DEWITT FREEMAN, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 183rd District Court Harris County, Texas Trial Court Cause Nos. 889,672 and 889,671 M E M O R A N D U M    O P I N I O N Appellant pleaded guilty to two felony offenses of delivery of a controlled substance, and the trial court assessed twelve years’ confinement in the Texas Department of Criminal Justice, Institutional Division. On appeal, appellant complains that (1) the trial court denied appellant his right to compulsory process, and (2) the trial court imposed on him a cruel and unusual punishment. We affirm. Appellant voluntarily pleaded guilty to two counts of delivery of a controlled substance of more than four grams and less than two hundred grams. After the pre-sentence investigation hearing, in which appellant introduced two witnesses and testified himself, the trial court sentenced appellant to twelve years= confinement. On appeal, appellant now raises six points of error. Combined in his first four issues, appellant contends the trial court denied him a right to compulsory process and failed to properly admonish him regarding waiver of his compulsory process. In his last two issues, appellant argues, under Texas and United States Constitutions, his twelve-year incarceration sentence constitutes cruel and unusual punishment. I. Compulsory Process First, appellant raises constitutional arguments regarding his right to compulsory process. He urges this Court to fashion a new rule that a defendant must expressly waive his right to compulsory process before pleading guilty to a crime. Appellant also asserts article 1.15 of the Texas Code of Criminal Procedure is unconstitutional. We disagree with both of appellant’s arguments. Regarding his waiver argument, the Supreme Court has enumerated the rights that specifically must be waived when a defendant pleads guilty: the right not to incriminate one’s self, the right to trial by jury, and the right to confront one=s accusers. Boykin v. Alabama, 395 U.S. 238, 89 S. Ct. 1709, 23 L. Ed. 2d 274 (1969). Appellant waived these rights in writing when he pleaded guilty. Texas does not require that a defendant also expressly waive his right to compulsory process. Lyles v. State, 745 S.W.2d 567, 567 (Tex. App.CHouston [1st Dist.] 1988, writ ref’d). In Vanderberg, this Court addressed appellant=s exact argument. Vanderberg v. State, 681 S.W.2d 713, 717 (Tex. App.CHouston [14th Dist.] 1984, writ ref=d). There we held, “[t]he right to compulsory process is not one of the fundamental rights mentioned in Boykin v. Alabama.” Id. We acknowledged that some states require a waiver of a defendant=s compulsory process, but Texas does not. Id. We again decline to broaden this state’s policy to require a waiver. Appellant=s second assertion, that article 1.15 of the Texas Code of Criminal Procedure is unconstitutional, is likewise without merit and also previously addressed in Vanderberg. Appellant argues that article 1.15 requires evidence of guilt before a trial court can accept a defendant’s plea of guilty, yet he claims a defendant cannot introduce defense witnesses to refute the state=s evidence. The purpose of article 1.15 of the Texas Code of Criminal Procedure is to “ensure that no person may be convicted of a felony on a plea of guilty without sufficient evidence being introduced to show guilt.” Lyles, 745 S.W.2d at 567. It is an additional safeguard provided in Texas. Vanderberg, 681 S.W.2d at 718. The article does not prohibit the defendant from offering evidence through cross-examination or by introducing defense witnesses. However, witnesses may be introduced only at the punish-ment phase. We previously stated that “[i]t would . . . be illogical to allow a defendant to plead guilty and then to conduct a ‘mini-trial’ on guilt-innocence. Any trial allowed would be on the punishment phase only.” Id. Here, during the punishment phase, appellant introduced two witnesses and he testified. The trial court considered the testimony and sentenced appellant to only twelve years’ incarceration rather than the potential ninety-nine years. Again, we hold that article 1.15 is constitutional. We reaffirm our holding in Vanderberg, and we overrule appellant=s first four issues. II. Cruel and Unusual Punishment Next, we address appellant’s argument that his punishment was cruel and unusual. Most importantly, to complain to this Court that his sentence was cruel and unusual, appellant must have objected at trial. He did not. See Rhoades v. State, 934 S.W.2d 113, 120 (Tex. Crim. App. 1996); see also Jacobs v. State, 80 S.W.3d 631, 632B33 (Tex. App.CTyler 2002, no pet.); Tex. R. App. P. 33.1. By failing to object to the sentence, appellant failed to preserve the issue for appeal. See Nicholas v. State, 56 S.W.3d 760, 768 (Tex. App.CHouston [14th Dist.] 2001, pet. ref’d). “As a prerequisite to presenting a complaint for appellate review, the record must show that: (1) the complaint was made to the trial court by a timely request, objection, or motion . . .” Tex. R. App. P. 33.1(a). At the time the sentence was assessed, appellant did not object that his sentence violated his constitutional rights, nor did he raise this issue in a post-trial motion. Therefore, appellant=s argument that the sentence violated his constitutional rights has been waived. However, even if appellant preserved error by objecting, the sentence imposed does not constitute cruel and unusual punishment. The legislature has the power to define crimes and assess punishment. See Jacobs, 80 S.W.3d at 633. Punishment that falls within the statutory guidelines is not excessive. See id.; see also Harris v. State, 656 S.W.2d 481, 486 (Tex. Crim. App. 1983); Jordan v. State, 495 S.W.2d 949, 952 (Tex. Crim. App. 1973). “[W]here the punishment assessed by the judge or jury was within the limits prescribed by the statute the punishment is not cruel and unusual within the constitutional prohibition.”[1] Samuel v. State, 477 S.W.2d 611, 614 (Tex. Crim. App. 1972). Here, appellant pleaded guilty to two counts of delivery of a controlled substance, both first degree felonies. Tex. Health & Safety Code Ann. ' 481.112(d). The statutory limitation for a first degree felony is from five years to ninety-nine years in prison. Tex. Pen. Code Ann. ' 12.32(a). The trial court assessed punishment on the lower end of this rangeCat twelve years. Because the sentence was within the statutory limits, appellant’s punishment is not prohibited as cruel, unusual, or excessive. See Harris, 656 S.W.2d at 486; Jordan, 495 S.W.2d at 952. We overrule appellant’s last two issues and affirm the judgment of the trial court. /s/ Wanda McKee Fowler Justice Judgment rendered and Memorandum Opinion filed April 24, 2003. Panel consists of Chief Justice Brister, Justices Fowler and Murphy.[2] Do Not Publish C Tex. R. App. P. 47.2(b). [1] The United States Supreme Court noted that an exception exists to this general rule. A[A] criminal sentence must [also] be proportionate to the crime for which the defendant has been convicted.@ Solem v. Helm, 463 U.S. 277, 290, 103 S. Ct. 3001, 3009 (1983). Here, the record does not contain evidence that appellant=s sentence was grossly disproportionate to other sentences for a person previously convicted of a first degree felony in Texas. [2] Senior Chief Justice Paul C. Murphy participating by assignment.