Perez, Luis Alfredo ( 2015 )

PD-0373-15
PD-0373-15 COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 3/31/2015 3:37:33 PM
Accepted 4/1/2015 4:59:23 PM
ABEL ACOSTA
IN THE COURT OF CRIMINAL APPEALS CLERK
OF AUSTIN, TEXAS
LUIS ALFREDO PEREZ, §
Appellant §
§
VS. §
§
THE STATE OF TEXAS, §
Appellee §
ON PETITION FOR DISCRETIONARY REVIEW FROM THE DECISION
OF THE COURT OF APPEALS FOR
THE EIGHTH DISTRICT OF TEXAS, AT EL PASO, TEXAS
IN CAUSE NO. 08-13-00103-CR
AFFIRMING APPELLANT'S CONVICTION AND SENTENCE
IN CAUSE NO. 1245990D
HONORABLE LOUIS E. STURNS, PRESIDING
FROM THE 213TH DISTRICT COURT OF
TARRANT COUNTY, TEXAS
APPELLANT'S PETITION FOR DISCRETIONARY REVIEW
April 1, 2015
Richard A. Henderson
State Bar No. 09427100
RICHARD A. HENDERSON, P.C.
100 Throckmorton Street, Suite 540
Fort Worth, Texas 76102
817-332-9602 - Telephone
817-335-3940 - Facsimile
richard(ã,ahenderson. corn
ATTORNEY FOR APPELLANT, Luis ALFREDO PEREZ
SUBJECT INDEX
IDENTITY OF PARTIES AND COUNSEL ...........................................................ii
TABLE OF AUTHORITIES .................................................................................... iii
STATEMENT REGARDING ORAL ARGUMENT...............................................1
STATEMENT OF THE CASE ................................................................................. 1
STATEMENT OF PROCEDURAL HISTORY.......................................................
GROUNDSFOR REVIEW ......................................................................................
REASONSFOR REVIEW .......................................................................................
GROUNDONE.................................................................................................1
CONCLUSION AND PRAYER...............................................................................4
CERTIFICATE OF COMPLIANCE ........................................................................ 5
CERTIFICATE OF SERVICE.................................................................................. 5
APPENDICES...........................................................................................................6
Appendix "A"
(Opinion of the Court of Appeals Eighth District of Texas, El Paso,Texas)
IDENTITY OF PARTIES AND COUNSEL
The following is a complete list of all parties pursuant to Texas Rules of
Appellate Procedure 68.4(a):
Mr. Luis Alfredo Perez, TDC#01840600
3899 State Hwy 98
New Boston, Texas 75570
Defendant/Appellant
2. Ms. Rose Anna Salinas
1214 Fairmount Avenue
Fort Worth, Texas 76104
Trial Attorney
3. THE STATE OF TEXAS
Ms. Tasha S. Foster
Trial Counsel
Tarrant County District Attorney's Office
Mr. Charles Mallin
Former Chief of Appellate
Tarrant County District Attorney's Office
Mr. Joe Shannon, Jr.
Former Criminal District Attorney
Tarrant County, Texas
Ms. Debra Windsor, Benson Varghese
Appellate Counsel for Appellee
Tarrant County District Attorney's Office
Ms. Sharen Wilson
Criminal District Attorney
Tarrant County, Texas
401 W. Belknap Street, Fort Worth, Texas 76196
Plaintiff /Appellee
4. Honorablig Louis E. Sturns
Judge, 213t District Court
401 W. Belknap Street
Fort Worth, Texas 76196
Trial Judge
5. Richard A. Henderson
Richard A. Henderson, P.C.
100 Throckmorton Street, Suite 540
Fort Worth, Texas 76102
Attorney for Appellant
11
TABLE OF AUTHORITIES
CASES
Acosta v. State,
160 S.W.3d 204 (Tex. App.—Ft. Worth 2005 no pet.).........................................3
Calhoun v. State,
214 S.W.335 (Tex. Crim. App. 1919).................................................................3
Delacruz v. State,
167 S.W.3d 904 (Tex. App.—Texarkana 2005) .................................................. 3
Harmelin v. Michigan,
501 U.S. 957 (1991) .............................................................................................3
Jordan v. State,
495 S.W.2d 949, 952 (Tex.Crim. App. 1973)......................................................3
McGruder v. Puckett,
954 F2d 316 (5th Cir.) cert denied 506 U.S. 849 (1992) .....................................3
CONSTITUTIONS:
8" Amendment of the United States Constitution.....................................................3
Article 1 Section 13 of the Texas Constitution.........................................................3
111
STATEMENT REGARDING ORAL ARGUMENT
Petitioner believes that oral argument would aid the court in deciding the
critical issues presented.
STATEMENT OF THE CASE
Appellant pleaded guilty to murder before the court and was sentenced to
fifty (50) years by the trial court after a presentence report and punishment hearing.
STATEMENT OF PROCEDURAL HISTORY
The Court of Appeals issued its Opinion affirming the conviction on March
4, 2015. No Motion for Rehearing was filed. This Petition for Discretionary
Review is timely if filed on or before April 3, 2015.
GROUNDS FOR REVIEW
GROUND ONE: Is a ruling on a Motion for New Trial necessary when Appellant
complains that his punishment was cruel and unusual and
disproportionate?
REASONS FOR REVIEW
Reason for Review Ground One:
The Appellate Court in its opinion ruled that Appellant had failed to preserve
the issue of cruel and unusual punishment and disproportionality of the punishment
1
by not presenting the motion for new trial to the trial court and obtaining a ruling.
The Appellate court stated that by not objecting at the sentencing hearing and by
not presenting the Motion for New Trial to the trial court that Appellant failed to
give the trial court notice that Appellant wanted the trial court to take some action
ostensibly to correct its error.
With all due respect, Appellant believes that the trial court knows if a
punishment is cruel and unusual and/or disproportionate without an objection or a
Motion for New Trial.
A short summary of the facts is as follows:
Appellant and his significant other, Nubia Perez, were having problems
getting along and with visitation of their two young children after a stormy
relationship. Each was charged with assaults on the other. Nubia believed that
Appellant was an alcoholic and their altercations occurred when Appellant had
been drinking. The couple had separated and reconciled various times.
On July 3, 2011, Nubia was staying with her mother, Maria Ramirez at an
apartment in Arlington, Texas in Tarrant County, Appellant wanted to take the
children for a visitation. Nubia refused. Appellant came to the apartment to
confront Nubia. Maria went outside to confront Appellant. After a conversation,
Appellant pulled out a gun and shot Maria. She died of this gunshot wound.
Appellant is twenty-five (25) years old. The sentence is double his current
age. The mitigating circumstances of his life as testified to by his relatives and
friends were that this was not the Appellant that they knew and urged and
testified to his good character. They testified that Appellant was a loving father and
a hard worker. They urged the judge to impose a reasonable sentence.
Appellant believes his punishment of fifty (50) years is cruel and unusual
and disproportionate and violates both the 8th Amendment of the United States
Constitution and Article 1 Section 13 of the Texas Constitution, Calhoun v. State,
214 S.W.335 (Tex. Crim. App. 1919); Jordan v. State, 495 S.W.2d 949, 952
(Tex.Crim. App. 1973); Delacruz v. State, 167 S.W.3d 904 (Tex. App.—Texarkana
2005); Acosta v. State, 160 S.W.3d 204; (Tex.App.—Ft. Worth 2005 no pet.);
McGruder v. Puckett, 954 F2d 316 (5th Cir.) cert denied 506 U.S. 849 (1992) and
Harmelin v. Michigan, 501 U.S. 957 (1991).
The Appellate court never reached the merits of the appeal because they
stated that Appellant had essentially waived the error. Appellant urges this court to
grant his petition and order the Court of Appeals to consider the merits of his
appeal.
3
CONCLUSION AND PRAYER
WHEREFORE, Appellant respectfully prays that this Court reverse the
decision of the Court of Appeals and the Trial Court and remand this cause to the
court of Appeals and to order the trial court to conduct a new trial.
Respectfully Submitted,
RICHARD A. HENDERSON, P.C.
Two City Place
100 Throckmorton Street, Suite 540
Fort Worth, Texas 76102
(Telephone) 817-332-9602
Q11 '22 ,Z
(Telec'
E-mai
Mon
Richard A. Henderson
State Bar No. 09427100
ATTORNEY FOR APPELLANT
4
CERTIFICATE OF COMPLIANCE
This document complies with the typeface requirements of Tex.R. App.
Proc. 9.4(e), because it has been prepared in a conventional typeface no smaller
than 14-point for text and 12-point for footnotes. This document also complies
with the word-count limitations of Tex.R.App.P. Rule 9.4(i), because it contains
1,245 words, excluding any parts exempted by Tex.R.App.Proc 9.4(i) (1), as
computed by the word-count feature of Microsoft ce Word 2019, the computer
program used to prepare the document.
A. Henderson
CERTIFICATE OF SERVICE
A true copy of the foregoing document has been electronically served on
opposing counsel, Ms. Debra Windsor, Assistant District Attorney, Chief of
Appellant Section, Tarrant County District Attorney's office, 401 W Belknap
Street, Fort Worth, Texas 76196 and mailed U.S. Regular Mail to Appellant, Mr.
Luis Alfredo Perez, TDCJ #1840600, Telford Unj3899 State Hwy/98, New
Boston, Texas 75570 on this the 31st day of
Rich'ai'd A. Henderson
5
APPENDICES
APPENDIX "A"
OPINION/JUDGMENT
COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
ItI
COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
§
LUIS ALFREDO PEREZ, No. 08-13-00103-CR
§
Appellant, Appeal from
§
I
,
, 213th District Court
§
THE STATE OF TEXAS, of Tarrant County, Texas
§
Appellee. (TC # 1245990D)
§
OPINION
Luis Alfredo Perez appeals his conviction of murder. Appellant waived his right to a jury
trial and entered an open plea of guilty before the trial court. The trial court assessed punishment
at imprisonment for a term of fifty years. Finding no error, we affirm.'
DISPROPORTIONATE SENTENCE
In his sole issue, Appellant contends that the sentence of fifty years is constitutionally
disproportionate and constituted cruel and unusual punishment in violation of the Eighth
Amendment and Article 1, Section 13 of the Texas Constitution. The State responds that
This appeal was transferred from the Second Court of Appeals to the Eighth Court of Appeals pursuant to a docket
equalization order issued by the Texas Supreme Court. We have applied precedent of the Second Court of Appeals
as required by TEX.R.APP.P. 41.3.
Appellant failed to preserve error because he did not present his motion for new trial to the trial
court.
To present a complaint on appeal, the record must show that the party brought the error to
the attention of the trial court by a timely and specific request, objection, or motion.
TEx.R.APP.P. 33.1(a). The defendant can preserve a complaint that a sentence is
disproportionate for the crime or circumstances particular to the defendant's case by making a
timely and specific objection when sentence is pronounced or by raising it in a motion for new
trial. See Rhoades v. State, 934 S.W.2d 113, 120 (Tex.Crim.App. 1996); Kim v. State, 283
S.W.3d 473, 475 (Tex.App.--Fort Worth 2009, pet. ref d). Appellant did not object when the
trial court pronounced sentence, but he filed a motion for new trial asserting that his sentence
was constitutionally disproportionate. To preserve an issue by motion for new trial in a criminal
case, the defendant must present the motion to the trial court within ten days of filing it unless
the trial court permits it to be presented and heard within seventy-five days from the date
sentence was imposed or suspended in open court. TEx.R.APP.P. 21.6. The purpose of Rule
21.6 is "to put the trial court on actual notice that a defendant desires the trial court to take some
action on the motion for new trial such as a ruling or a hearing on it." Stokes v. State, 277
S.W.3d 20, 21 (Tex.Crim.App. 2009), quoting Carranza v. State, 960 S.W.2d 76, 78
(Tex.Crim.App. 1998). The filing of a motion for new trial alone is not sufficient to show
presentment. Stokes, 277 S.W.3d at 21. The record must show that the trial court has actual
notice of the motion. See Richardson v. State, 328 S.W.3d 61, 72 (Tex.App.--Fort Worth 2010,
pet. ref d). Presentment can be accomplished in several ways, including by obtaining a ruling on
-2-
the motion for new trial, the trial judge's signature or notation on a proposed order, or a hearing
date on the docket sheet. See Stokes, 277 S.W.3d at 21-22; Carranza, 960 S.W.2d at 79; Burrus
v. State, 266 S.W.3d 107, 115 (Tex.App.--Fort Worth 2008, no pet.).
Appellant raised the disproportionate sentence issue in his timely filed motion for new
trial, but there is nothing in the record showing that he presented the motion to the trial court.
Consequently, we find that Appellant failed to preserve this issue. See Richardson, 328 S.W.3d
March 4, 2015
ANN CRAWFOMcCLURE, Chief Justice
Before McClure, C.J., Rodriguez, J., and Barajas, CT, (Senior Judge)
(Barajas, CT, Senior Judge, sitting by assignment)
(Do Not Publish)
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COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
§
LUIS ALFREDO PEREZ, No. 08-13-00103-CR
§
Appellant, Appeal from
§
V. 213th District Court
§
THE STATE OF TEXAS, of Tarrant County, Texas
§
Appellee. (TC # 1245990D)
§
JUDGMENT
The Court has considered this cause on the record and concludes there was no error in the
judgment. We therefore affirm the judgment of the court below. This decision shall be certified
below for observance.
IT IS SO ORDERED THIS 4TH DAY OF MARCH, 2015.
ANN CRAWFORD McCLURE, Chief Justice
Before McClure, C.J., Rodriguez, J., and Barajas, C.J., (Senior Judge)
(Barajas, C.J., Senior Judge, sitting by assignment)