Michael Andrew Cowan v. State ( 2015 )

NUMBERS 13-14-00358-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
MICHAEL ANDREW COWAN, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 24th District Court
of Victoria County, Texas.
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Benavides and Perkes
Memorandum Opinion by Justice Perkes
Appellant Michael Andrew Cowan pleaded guilty to online solicitation of a minor, a
second degree felony, and the jury assessed punishment at seven years’ imprisonment
and a $10,000 fine. See TEX. PENAL CODE ANN. § 33.021(c) (West, Westlaw through Ch.
46 2015 R.S.). By a single issue, appellant contends his sentence violated his due
process rights.1 See U.S. CONST. amend. XIV. We affirm.
I. BACKGROUND
During the sentencing phase of trial, Victoria Police Department Detective Cody
Breunig testified to the events leading up to appellant’s arrest. Detective Breunig was
assigned to a task force conducting a “pro-active” investigation to find online child
predators. During the investigation, Detective Breunig searched the website “Craig’s
List” for advertisements containing the word “young.” He then discovered appellant’s
advertisement entitled “Ladys young and old.” He located appellant’s phone number in
the advertisement, and contacted appellant via an internet communication program called
“Google Voice”, which allowed him to create a phone number.
While communicating with appellant via text message, Detective Breunig indicated
he was a 15-year old female named “Brandi” who just moved from Florida. Appellant
continued to send messages to Detective Breunig and requested pornographic photos.
Appellant also described explicit sexual encounters he would like to have with “Brandi.”
Appellant arranged to drive to a park to pick up “Brandi.” He did not show up at the
scheduled time, but left several voice and text messages indicating he was still interested
in meeting her.
The next day, appellant sent additional explicit messages to Detective Breunig.
Appellant arranged to pick up “Brandi” from a park near her house that evening. Around
1 We note that Cowan asserts throughout his brief that his arguments are “foreclosed under current
law but [are] raise[d] … in an adversarial fashion for purposes of preserving error for possible further
review.”
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4:30 p.m., appellant arrived at the agreed upon location in a white truck, which matched
the vehicle description given to Detective Breunig. Appellant was arrested at the scene.
The jury assessed punishment at seven years’ imprisonment and a $10,000 fine.
The trial court asked whether there was any reason why the sentence should not be
pronounced and imposed. Appellant’s counsel responded “[n]o sir.” The trial court
sentenced appellant accordingly. This appeal followed.
II. CONSTITUTIONALITY OF SENTENCE
By his sole issue, appellant contends that “the sentence imposed by the court in
this case violates his U.S. constitutional due process right to receive a sentence which is
not more than necessary to accomplish all of the objectives in the Texas Penal Code.”
Specifically, appellant argues that his sentence is inappropriate because “a sentence of
probation would have . . . accomplished all of the sentencing objectives of the Texas
Penal Code.” Appellant maintains that “his substantive and procedural due process
rights were violated when the court imposed a sentence of imprisonment.”2
To preserve a complaint of improper sentencing, a criminal defendant must make
a timely, specific objection to the trial court or raise the issue in a motion for new trial.
Kim v. State, 283 S.W.3d 473, 475 (Tex. App.—Fort Worth 2009, pet. ref'd) (citing
Rhoades v. State, 934 S.W.2d 113, 120 (Tex. Crim. App. 1996)); Noland v. State, 264
S.W.3d 144, 151–52 (Tex. App.—Houston [1st Dist.] 2007, pet. ref'd); Trevino v. State,
174 S.W.3d 925, 927–28 (Tex. App.—Corpus Christi 2005, pet. ref'd); Quintana v. State,
2 Appellant does not cite to the due process provisions of the United States Constitution or any
case law interpreting those provisions. Appellant also fails to make any substantive due process
arguments. See TEX. R. APP. P. 38.1(i).
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777 S.W.2d 474, 479 (Tex. App.—Corpus Christi 1989, pet. ref'd) (holding defendant
waived cruel and unusual punishment argument by failing to object); see also TEX. R.
APP. P. 33.1. Appellant did not object when the trial court imposed sentence and did not
complain of the sentence in any post-trial motion.
We also observe that appellant's sentence of seven years’ imprisonment is within
the statutory punishment mid-range for a second degree felony. TEX. PENAL CODE ANN.
§ 12.33 (range of punishment for second degree felony is “any term of not more than 20
years or less than 2 years”). A punishment within the limits prescribed by a valid statute
is not per se excessive, cruel, or unusual. See Trevino, 174 S.W.3d at 928.
Inasmuch as appellant failed to object to the sentence and the sentence is within
the punishment range for a second degree felony, we overrule appellant's issue. See
TEX. R. APP. P. 33.1; Kim, 283 S.W.3d at 475; Noland, 264 S.W.3d at 151–52; Trevino,
174 S.W.3d at 927–28; Quintana, 777 S.W.2d at 479.
III. CONCLUSION
We affirm the trial court’s judgment.
GREGORY T. PERKES
Justice
Do not publish.
TEX. R. APP. P. 47.2(b).
Delivered and filed the
16th day of July, 2015.
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