Robert C. Edwards, Jr. v. State ( 2006 )

Opinion to: SJR TGT SN TJ EVK ERA GCH LCH JB

Opinion issued April 27, 2006

In The

Court of Appeals

For The

First District of Texas

NOS. 01-04-00966-CR

          01-04-00967-CR

          01-04-00968-CR

          01-04-00969-CR

          01-04-00970-CR

          01-04-00971-CR

ROBERT C. EDWARDS JR., Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 177th District Court

Harris County, Texas

Trial Court Cause Nos. 690497, 976234, 976235, 964983, 964984, 714626

MEMORANDUM OPINION

          Robert C. Edwards Jr. appeals a trial court judgment adjudicating him guilty of six felony offenses: aggravated assault, burglary of a habitation with the intent to commit aggravated assault, two counts of indecency with a child, and two counts of aggravated sexual assault of a child. The trial court assessed punishment at life imprisonment for each offense.  The court ordered that the life sentences for aggravated assault, burglary, and one count of indecency with a child would run concurrently, after which Edwards would serve his concurrent life sentences for the remaining count of indecency with a child and the two counts of aggravated sexual assault of a child (the “stacking order”).  Edwards contends (1) the trial court erred in adjudicating him pursuant to the State’s Second Amended Motion to Adjudicate Guilt because the State did not file it until after his community supervision term had ended, (2) the stacking order is null because it is based upon the null Second Amended Motion to Adjudicate Guilt, and (3) the imposition of two consecutive life sentences violates due process and the doctrine of proportionality.  We affirm.

Background

          In April 1995, the State charged Edwards with aggravated assault.  One year later, the State charged him with burglary of a habitation with the intent to commit aggravated assault.  Edwards pleaded guilty to both offenses without an agreed recommendation from the State as to punishment.  He also pleaded true to the enhancement paragraphs alleging that he had previously committed arson.  On July 16, 1996, the trial court deferred adjudication and placed Edwards on community supervision for eight years.

On October 16, 2003, the State charged Edwards with two counts of indecency with a child.  Based on these new charges, the State filed a Motion to Adjudicate Guilt one week later, alleging that Edwards had violated the conditions of his community supervision by intentionally and knowingly touching the breasts and genitals of a child under the age of seventeen.  Three months later, the State amended its Motion to Adjudicate Guilt by adding allegations that Edwards had violated the conditions of his community supervision by intentionally and knowingly possessing child pornography.

The State subsequently charged Edwards with two additional counts of aggravated sexual assault of a child.  Based on these new charges, the State filed a Second Amended Motion to Adjudicate Guilt on August 25, 2004, in which it added allegations that Edwards had violated the conditions of his community supervision by (1) intentionally and knowingly causing the mouth of a child under the age of fourteen to contact his sexual organ, (2) intentionally and knowingly placing his sexual organ in the female sexual organ of a child under the age of fourteen, (3) intentionally and knowingly exposing his genitals to a child under the age of seventeen, and (4) intentionally and knowingly causing a child under the age of seventeen to expose her genitals and to pose for nude photographs.

Edwards pleaded not guilty and waived his right to a jury trial on the counts of indecency with a child and aggravated sexual assault of a child.  The trial judge held a four-day court trial in September 2004.  After hearing testimony from eighteen witnesses, including the child complainants and Edwards, the trial court found Edwards guilty of both counts of indecency with a child and both counts of aggravated sexual assault of a child.  The court also found the remaining allegations in the State’s Second Amended Motion to Adjudicate Guilt true[1] and formally adjudicated Edwards guilty of the original offenses of aggravated assault and burglary of a habitation with the intent to commit aggravated assault.  After holding a separate punishment hearing, the trial court sentenced Edwards to life imprisonment for each offense.  The court ordered that the life sentences for aggravated assault, burglary, and one count of indecency with a child would run concurrently, after which Edwards would serve his concurrent life sentences for the remaining count of indecency with a child and the two counts of aggravated sexual assault of a child.  This appeal followed.

Analysis

Second Amended Motion to Adjudicate Guilt

          Edwards contends the trial court erred in adjudicating him pursuant to the State’s Second Amended Motion to Adjudicate Guilt because the State did not file its second amended motion until after Edwards’s community supervision term had ended, making it a nullity.  Edwards also asserts that the trial court’s stacking order is null because it states that the sentences for aggravated sexual assault of a child and one count of indecency with a child are to be served consecutively to the sentences imposed pursuant to the Second Amended Motion to Adjudicate Guilt.  According to Edwards, “as the decision to stack cannot be separated out from the adjudications,” and the adjudications were based upon a null motion to adjudicate, the decision to stack is also void.  The State maintains that “it is not at all clear that [Edwards] should be permitted to challenge the trial court’s adjudication of his guilt in this manner because [the Texas Code of Criminal Procedure] prevents a defendant from bringing an appeal from the trial court’s decision to adjudicate a defendant’s guilt.”

          The Code of Criminal Procedure provides as follows:

On violation of a condition of community supervision . . . , the defendant may be arrested and detained . . . .  The defendant is entitled to a hearing limited to the determination by the court of whether it proceeds with an adjudication of guilt on the original charge.  No appeal may be taken from this determination.  After an adjudication of guilt, all proceedings, including assessment of punishment, pronouncement of sentence, granting of community supervision, and defendant’s appeal continue as if the adjudication of guilt had not been deferred.

Tex. Code Crim. Proc. Ann. art. 42.12, § 5(b) (Vernon Supp. 2005) (emphasis added).

          The Court of Criminal Appeals recently clarified the meaning of this provision.  The court instructed that “if an appeal raises a claim of purported error in the adjudication of guilt determination, a court of appeals should dismiss that claim without reaching the merits.”  Hogans v. State, 176 S.W.3d 829, 832 (Tex. Crim. App. 2005) (citing Phynes v. State, 828 S.W.2d 1, 2 (Tex. Crim. App. 1992) (“[A]s there is nothing in the Texas Constitution which guarantees the right to appeal a criminal conviction, that right is only as provided by the legislature. It naturally follows that when a legislative enactment says an accused may not appeal a determination to adjudicate, there is no right to do so.”)).  In contrast, a defendant may “appeal aspects of the second phase to determine punishment.”  Id. at 833 (internal quotation marks and citation omitted).  However,

[t]he fact that a defendant may appeal sentencing claims that temporally occur during adjudication “proceedings” does not give an appellate court jurisdiction to consider any issue framed as a punishment issue.  Rather, the asserted error must directly and distinctly concern the second phase; the claim must, on its face, relate to the sentence imposed, not to the decision to adjudicate.  Any other rule would eviscerate the Section 5(b) bar on direct appeals of the decision to adjudicate.

Id. at 834 (internal citation omitted).  The section 5(b) bar on direct appeals “includes all complaints related to the trial court’s decision to proceed to an adjudication of guilt, except for those challenging the trial court’s jurisdiction.”  Id. at 832 n.6 (citing Nix v. State, 65 S.W.3d 664, 667–68 (Tex. Crim. App. 2001) (recognizing applicability of “void judgment” exception to deferred adjudication proceedings)).  The “void judgment” exception acknowledges that “there are some rare situations in which a trial court’s judgment is accorded no respect due to a complete lack of power to render the judgment in question.  A void judgment is a ‘nullity’ and can be attacked at any time.”  Nix, 65 S.W.3d at 667–68.

          Here, Edwards contends the trial court erred in sentencing him pursuant to the State’s Second Amended Motion to Adjudicate Guilt because the State filed its motion after his community supervision term had ended.  Edwards also asserts that the stacking order is void because it is based upon the void sentence imposed pursuant to the second amended motion.  Under Hogans and Nix, we may consider Edwards’s contention that the trial court’s judgment is void.

A judgment is void “only in very rare situations—usually due to a lack of jurisdiction.”  Id. at 668.  In the deferred adjudication context, a trial court retains jurisdiction to hear a motion to adjudicate if the State files its motion and the court issues a capias before the expiration of the community supervision period.  Tex. Code Crim. Proc. Ann. art. 42.12, § 5(h) (Vernon Supp. 2005).  It is undisputed in this case that the State moved to adjudicate Edwards’s offenses of aggravated assault and burglary of a habitation with the intent to commit aggravated assault before the expiration of his community supervision.[2]  The trial court thus retained jurisdiction.  Once the State invokes the court’s jurisdiction, it may amend its motion to adjudicate at any time up to seven days before the date of the adjudication hearing.  Tex. Code Crim. Proc. Ann. art. 42.12, § 21(b) (Vernon Supp. 2005).  Here, the State filed its Second Amended Motion to Adjudicate Guilt on August 25, 2004, more than seven days before the September 7 hearing.  Accordingly, we conclude that the trial court had jurisdiction to adjudicate Edwards pursuant to the State’s Second Amended Motion to Adjudicate Guilt, and we therefore lack jurisdiction to address Edwards’s claims of purported error in the adjudication of guilt determination.  See Few v. State, 136 S.W.3d 707, 709–10, 712, 715 (Tex. App.—El Paso 2004, no pet.) (holding that section 5(b) barred consideration of appellant’s argument that State had improperly amended its motion to adjudicate at adjudication hearing held after appellant’s probation had expired because “no appeal lies from errors in the adjudication of guilt process”) (internal quotation marks and citation omitted).

Consecutive Life Sentences

          Edwards contends the trial court’s imposition of two consecutive life sentences violates his due process rights and the doctrine of proportionality in light of his “clear history of abuse, his need for medication and his apparent lingering effects of his childhood trauma.”  As this asserted error relates to the sentences imposed rather than the decision to adjudicate, we have jurisdiction to address it.  See Hogans, 176 S.W.3d at 834.  We conclude, however, that Edwards failed to preserve this issue for appeal.

          “It is well established that almost every right, constitutional and statutory, may be waived by failing to object.”  Solis v. State, 945 S.W.2d 300, 301 (Tex. App.—Houston [1st Dist.] 1997, pet. ref’d) (citing Smith v. State, 721 S.W.2d 844, 855 (Tex. Crim. App. 1986)).  To preserve a complaint for appellate review, a party must present to the trial court a timely request, objection, or motion that states the specific grounds for the desired ruling.  Tex. R. App. P. 33.1(a).  Here, Edwards did not object to his sentences on either disproportionality or due process grounds at the time they were imposed; nor did he raise these arguments in a post-trial motion.  We therefore hold that Edwards has waived any error.  See Holley v. State, 167 S.W.3d 546, 549 (Tex. App.—Houston [14th Dist.] 2005, pet. ref’d) (holding that appellant waived proportionality argument by failing to timely object to sentence); Marrow v. State, 169 S.W.3d 328, 329–30 (Tex. App.—Waco 2005, pet. ref’d) (holding that appellant failed to preserve argument that cumulation of sentences violated due process because he did not object to sentences on this ground); Rodriguez v. State, 71 S.W.3d 778, 779 (Tex. App.—Texarkana 2002, no pet.) (“[A] defendant is required to raise in the trial court at the time the sentence is imposed any objection he might have on the ground of disproportionality.”); Nicholas v. State, 56 S.W.3d 760, 768 (Tex. App.—Houston [14th Dist.] 2001, pet. ref’d) (holding that appellant waived argument that five consecutive life sentences constituted cruel and unusual punishment by failing to either object at time sentences were announced or raise argument in post-trial motion); Solis, 945 S.W.2d at 301–02 (holding that appellant waived any error by failing to object to alleged disproportionality of sentences).

          Even if Edwards had preserved error, the two consecutive life sentences are not disproportionate to the crimes Edwards committed.  In his brief, Edwards “clarif[ies] that his argument is against the stacking, one upon the other herein, of two life sentences.”  The Texarkana Court of Appeals recently examined the stacking issue in Williamson v. State, 175 S.W.3d 522 (Tex. App.—Texarkana 2005, no pet.). In that case, a jury had convicted Williamson of three counts of aggravated sexual assault of a child and had sentenced him to three life terms, which the trial court ordered would run consecutively.  Id. at 523.  Like Edwards, Williamson did not argue on appeal that each individual sentence was excessive—rather, he argued that stacking three life terms was disproportionate and a violation of the constitutional prohibition against cruel and unusual punishment.  Id. at 523–24.

          In holding that the imposition of three consecutive life sentences was not cruel and unusual, the Texarkana Court of Appeals “first recognize[d] that there is authority stating that the cumulation of sentences does not constitute cruel and unusual punishment.”  Id. at 524 (citing Stevens v. State, 667 S.W.2d 534, 538 (Tex. Crim. App. 1984); Baird v. State, 455 S.W.2d 259 (Tex. Crim. App. 1970); Quintana v. State, 777 S.W.2d 474, 480 (Tex. App.—Corpus Christi 1989, pet. ref’d)).  The court then applied the proportionality analysis established by the United States Supreme Court in Solem v. Helm, 463 U.S. 277, 103 S. Ct. 3001 (1983), and concluded that the imposition of three consecutive life sentences did not result in grossly disproportionate punishment for the offenses for which Williamson was convicted.  Williamson, 175 S.W.3d at 525.

          In Solem, the Supreme Court identified three criteria to use in evaluating the proportionality of a particular sentence: (1) the gravity of the offense and the harshness of the punishment, (2) the sentences imposed on other criminals in the same jurisdiction, and (3) the sentences imposed for the same offense in other jurisdictions.  Solem, 463 U.S. at 292, 103 S. Ct. at 3011.  As the Williamson court observed, only if a reviewing court finds that the sentence is grossly disproportionate to the offense should it then consider the final two factors of the Solem test. Williamson, 175 S.W.3d at 525; see also McGruder v. Puckett, 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 . . . .”); Dale v. State, 170 S.W.3d 797, 799–800 (Tex. App.—Fort Worth 2005, no pet.) (same).  Punishment is grossly disproportionate only when an objective comparison of the gravity of the offense against the severity of the sentence reveals the sentence to be extreme.  Hicks v. State, 15 S.W.3d 626, 632 (Tex. App.—Houston [14th Dist.] 2000, pet. ref’d).  We judge the gravity of the offense in light of the harm caused or threatened to the victim or society and the culpability of the offender.  Dale, 170 S.W.3d at 800.

          Here, after committing arson, and after pleading guilty and being placed on community supervision for both aggravated assault and burglary of a habitation with the intent to commit aggravated assault, Edwards admittedly violated the conditions of his community supervision by having sexual intercourse with his twelve-year-old stepdaughter on “several” occasions.  Edwards’s wife participated in some of these incidents; in fact, Edwards and his wife made a videotape of one of their sexual encounters with Edwards’s stepdaughter, which the State introduced into evidence. The State also introduced forty-four nude photographs that Edwards had taken of a seven-year-old girl from his neighborhood.  Edwards admitted posing nude with the girl, and the evidence additionally showed that he molested her.  In light of the severe harm suffered by the young victims of Edwards’s sexual abuse, together with his prior felony offenses, we conclude that Edwards’s two consecutive life sentences are not grossly disproportionate.  See Rummel v. Estelle, 445 U.S. 263, 265–66, 276, 100 S. Ct. 1133, 1135–36, 1140 (1980) (holding life sentence under Texas recidivist statute for felony offense of obtaining $120.75 by false pretenses did not constitute cruel and unusual punishment, where appellant was previously convicted of passing forged check in amount of $28.36 and fraudulently using credit card to obtain $80 worth of goods or services); United States v. Yousef, 327 F.3d 56, 163 (2d Cir. 2003) (recognizing that appellant’s sentence, even if well beyond his life expectancy, was not grossly disproportionate to his crimes); United States v. Parker, 877 F.2d 327, 333–34 (5th Cir. 1989) (upholding appellant’s punishment of two consecutive life sentences for conspiracy and kidnapping); Williamson, 175 S.W.3d at 523, 525 (upholding appellant’s punishment of three consecutive life sentences for three counts of aggravated sexual assault of child); see also Williams v. State, 10 S.W.3d 370, 371, 373 (Tex. App.—Tyler 1999, pet. ref’d) (holding that appellant’s life sentence for second conviction of sexually assaulting child did not violate due process).

Conclusion

          We affirm the judgment of the trial court.

                                                          Jane Bland

                                                          Justice

Panel consists of Justices Taft, Higley, and Bland.

Do not publish.  Tex. R. App. P. 47.2(b).

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[1] With respect to the State’s allegations regarding intentional and knowing possession of child pornography, the trial court found that Edwards had possessed photographs, but not diskettes, depicting child pornography.

[2] Edwards’s community supervision expired on July 15, 2004.  The State filed its Motion to Adjudicate Guilt on October 22, 2003.