Joshua Gilbert Bonilla v. State ( 2015 )

Opinion filed August 21, 2015
In The
Eleventh Court of Appeals
__________
No. 11-14-00138-CR
__________
JOSHUA GILBERT BONILLA, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 238th District Court
Midland County, Texas
Trial Court Cause No. CR41897
MEMORANDUM OPINION
Appellant, Joshua Gilbert Bonilla, pleaded guilty to four counts of sexual
assault of a child.1 The trial court deferred adjudication of Appellant’s guilt on all
four counts, placed him on community supervision for a period of seven years, and
assessed a fine in the amount of $500. Later, during a revocation hearing, Appellant
1
See TEX. PENAL CODE ANN. § 22.011(a)(2)(A) (West 2011).
pleaded “true” to three of the allegations in the State’s motion to revoke community
supervision. The trial court found the allegations to be “true” and found that
Appellant had violated his community supervision. The trial court revoked his
community supervision and adjudicated him guilty of all four counts of sexual
assault of a child. The trial court subsequently assessed punishment at confinement
for eleven years for each count, all to be served concurrently, and then sentenced
Appellant accordingly. We affirm.
Appellant, in a single issue, argues that his punishment is grossly
disproportionate to the offense and constitutes cruel and unusual punishment in
violation of the Eighth Amendment of the United States Constitution; Article I,
section 13 of the Texas Constitution; and Article 1.09 of the Texas Code of Criminal
Procedure. See U.S. CONST. amend. VIII; TEX. CONST. art. I, § 13; TEX. CODE CRIM.
PROC. ANN. art. 1.09 (West 2005).
I. The Charged Offenses
On July 26, 2013, the grand jury indicted Appellant on four counts of sexual
assault of a child. A person commits the offense of sexual assault as charged in this
case if the person intentionally or knowingly causes the penetration of the anus or
sexual organ of a child by any means. PENAL § 22.011(a)(2)(A). The offense is a
second-degree felony. Id. § 22.011(f). An individual adjudged guilty of a felony in
the second degree shall be punished by imprisonment for any term of not more than
twenty years or less than two years. PENAL § 12.33(a).
II. Evidence at Revocation Hearing
In December 2013, the State moved to revoke Appellant’s community
supervision and adjudicate his guilt. The State alleged that Appellant had
(1) intentionally and knowingly entered into a “zero tolerance red zone,” Gatti’s
Pizza; (2) intentionally and knowingly entered into a “zero tolerance red zone,”
Midland Senior High School; (3) failed to obtain and maintain suitable employment;
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(4) failed to pay all community supervision fees and court costs; and (5) failed to
perform community service hours. The State abandoned the third allegation, and
Appellant pleaded “true” to the first, second, and fifth allegations.
At the hearing, Appellant’s community supervision officer, Lourdes Nunez,
testified that she had explained to Appellant the conditions of his community
supervision, explained “zero tolerance red zones,” and gave examples of Gatti’s
Pizza and any local school. Appellant never indicated to her that he did not
understand the conditions of his community supervision. Approximately a week
after Appellant was placed on community supervision, Nunez observed Appellant
walking from the Midland High School Annex, which is at the intersection of
Louisiana Street and A Street, to the corner of Marienfeld and Louisiana, apparently
en route to the Dairy Queen. Appellant was accompanied by a male student. Later
that day, Nunez counseled Appellant and again told him what a no tolerance red
zone was and told him that he needed to stay 1,000 feet away from any such zone.
About a month later, Nunez observed Appellant enter the foyer area of Gatti’s Pizza.
Nunez also indicated that she was unable to verify that Appellant had completed any
of the required community service hours.
III. Analysis
Appellant argues, as he did in his motion for new trial, that his punishment is
grossly disproportionate to the offense and, therefore, constitutes cruel and unusual
punishment. As a general rule, Texas courts do not consider a punishment as
excessive, cruel, or unusual if it is within the statutory punishment range established
by the state legislature. Jordan v. State, 495 S.W.2d 949, 952 (Tex. Crim. App.
1973); Dale v. State, 170 S.W.3d 797, 799 (Tex. App.—Fort Worth 2005, no pet.);
Hernandez v. State, No. B14-92-00704-CR, 1994 WL 468348, at *6 (Tex. App.—
Houston [14th Dist.] Sept. 1, 1994, no pet.) (not designated for publication). As a
very narrow exception, an individual’s sentence may constitute cruel and unusual
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punishment despite falling within the statutory range if it is grossly disproportionate
to the offense. Solem v. Helm, 463 U.S. 277, 287 (1983). However, “successful
challenges to the proportionality of particular sentences [will be] exceedingly rare.”
Id. at 289–90 (alteration in original) (quoting Rummel v. Estelle, 445 U.S. 263, 272
(1980)).
In Solem, the Supreme Court developed a proportionality analysis in order to
determine whether a punishment set within the statutory range is cruel and unusual.
Solem, 463 U.S. at 292; Dale, 170 S.W.3d at 799. This proportionality analysis
includes three factors:
(1) a comparison between the severity of the punishment and the gravity of
the offense,
(2) a comparison between Appellant’s sentence and sentences for the same
offense throughout Texas, and
(3) a comparison between Appellant’s sentence and sentences for the same
offense in other jurisdictions.
Solem, 463 U.S. at 292. First, we must compare the severity of the punishment and
the gravity of the offense. Id. As part of this determination, we will consider the
harm inflicted and threatened to be inflicted on either the victim or society.
Alvarez v. State, 63 S.W.3d 578, 581 (Tex. App.—Fort Worth 2001, no pet.). If we
determine that the punishment is grossly disproportionate to the offense, then we
will compare Appellant’s sentence to sentences for the same offense throughout
Texas and other jurisdictions. Id. However, if we conclude that the punishment is
not grossly disproportionate to the offense, then we will not consider the remaining
two factors set forth in Solem. Dale, 170 S.W.3d at 800.
The trial court adjudged Appellant’s guilt and assessed punishment at
confinement for a period of eleven years. As a second-degree felony, the statutory
punishment range is confinement for no more than twenty years and no less than two
years. PENAL § 12.33(a). Given the facts of the present case and given that
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Appellant’s punishment is in the middle of the statutory range, Appellant’s
punishment is not grossly disproportionate to the gravity of the offense. With no
finding that Appellant’s punishment is grossly disproportionate to the offense, there
is no need to compare Appellant’s punishment to other sentences for the same
offense in Texas or other jurisdictions. Dale, 170 S.W.3d at 800.
IV. Conclusion
We hold that Appellant’s punishment of confinement for a period of eleven
years on each county—to run concurrently—does not constitute cruel and unusual
punishment under the Eighth Amendment of the United States Constitution;
Article I, section 13 of the Texas Constitution; or Article 1.09 of the Texas Code of
Criminal Procedure. See U.S. CONST. amend. VIII; TEX. CONST. art. I, § 13; CRIM.
PROC. art. 1.09. We overrule Appellant’s sole issue.
V. This Court’s Ruling
We affirm the judgments of the trial court.
MIKE WILLSON
JUSTICE
August 21, 2015
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.
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