Juan Francisco Lopez v. State ( 2002 )

                      NUMBERS 13-99-668-CR & 13-99-677-CR

                             COURT OF APPEALS

                   THIRTEENTH DISTRICT OF TEXAS

                                CORPUS CHRISTI

JUAN FRANCISCO LOPEZ,                                                    Appellant,

                                                   v.

THE STATE OF TEXAS,                                                          Appellee.

                        On appeal from the 179th District Court

                                   of Harris County, Texas.

                                   O P I N I O N

                  Before Justices Yañez, Castillo, and McCormick^[1]

                                  Opinion by Justice Castillo

Appellant Juan Francisco Lopez pled no contest to two indictments alleging aggravated sexual assault of a child, without a plea bargain. The trial court found him guilty and assessed sentences of sixteen years imprisonment in each case, with the sentences running concurrently.  From these convictions and sentences, Lopez appeals, raising five issues for our review involving  jurisdictional, abuse of discretion, ineffective assistance of counsel, and constitutional claims.  We affirm.

Procedural History

Appellant was indicted in cause number 796836 for aggravated sexual assault of a child, under penal code section 22.021(a)(1)(B)(ii).^[2]  In a separate indictment, cause number 796837, appellant was likewise charged with aggravated sexual assault of a child, but under penal code section 22.021(a)(1)(B)(i).^[3]  Both cases involved the same child.

On April 23, 1999, appellant pled no contest to both indictments without an agreed recommendation as to punishment.  Among the papers signed by appellant and his counsel that day, in each case, was a document entitled AWaiver of Constitutional Rights, Agreement to Stipulate, and Judicial Confession,@ wherein he: 1) waived his rights to trial by jury and confrontation of the witnesses, and self-incrimination; 2) confessed that the State=s witnesses would testify that the allegations were true and occurred on the listed dates; 3) consented to the oral and written stipulation of evidence and the use of documentary evidence; 4) affirmed that he was satisfied with the representation provided by his attorney and had fully discussed the case with him;^[4] 5) pled no contest and affirmed there was no agreed recommendation; 6) waived any further time to prepare for trial; and 7) waived any right to appeal he should have, if the court accepted Athe foregoing plea bargain between myself and the prosecutor.@ Appellant also signed a document in each case entitled AStatement and waivers of defendant,@ in which appellant, among other things, stated that: 1) he fully understood the consequences of his plea, and after fully consulting with his attorney, requested the trial court to accept the plea; 2) he had freely, knowingly, and voluntarily executed that statement in open court with the consent and approval of his attorney; 3) he read and wrote English and had read the Aforegoing admonishments, statements and waivers@ as well as the written waiver of constitutional rights, agreement to stipulate and judicial confession before he signed them, and had consulted fully with his attorney before entering his plea; and 4) that he understood Athe foregoing admonishments,@ was aware of the consequences of his plea, was mentally competent and his plea freely and voluntarily made, was Atotally satisfied@ with the representation provided by his counsel,^[5] gave up all rights given to him by form, substance or procedure, had read the indictment and had committed each and every element alleged.  Appellant also filed a Amotion for probation@ in both cases.^[6]

The trial court accepted the plea, found the evidence substantiated appellant=s guilt and then, without entering a formal finding as to guilt, the case was reset to July 27, 1999, for a presentence investigation report to be compiled and to allow appellant to see an Aoutside@ doctor.  The case was not recalled until August 4, 1999.

At the August 4, 1999 hearing, the court considered a presentence investigation report, which included a psychological examination which had been requested, and paid for, by the defense, along with a June 18, 1999 statement by appellant.  The State called the investigating officer and the mother of the child complainant to the stand.  Appellant called no witnesses and did not testify.  The evidence and argument focused on the suitability of appellant for deferred adjudication community supervision.  The trial court ordered sentences of sixteen years confinement in each case, to run concurrently.  Appellant filed a pro se notice of appeal on August 23, 1999. No motion for new trial was filed.

Jurisdiction

Appellant first argues that, despite his written waiver of appeal, this court has jurisdiction to hear his claims, arguing that a waiver executed prior to trial and sentencing, as a matter of law, is not binding, citing Ex Parte Townsend, 538 S.W.2d 419, 420 (Tex. Crim. App. 1976).^[7]  The State agrees that the waiver does not bind appellant, but argues that the holding of Townsend has been modified by Blanco v. State so that the determinative question as to the validity of the waiver is not simply the timing of the waiver but whether a defendant is fairly certain of the punishment to be assessed at the time that the waiver is signed, such as when there is a plea bargain which is followed.  Blanco v. State, 18 S.W.3d 218, 220 (Tex. Crim. App. 2000).  We agree with the State that Blanco permits a pretrial waiver of appeal in the case of a plea bargain.  Id. However, as there was no plea bargain in the present case, Blanco does not apply, as the State notes. Moreover, the waiver itself was explicitly predicated on the trial court accepting a previously delineated plea bargain. As no plea bargain existed, the waiver was of no effect.  We agree with appellant, and the State, that we have jurisdiction to consider appellant=s substantive claims.

Plea of No Contest

Appellant raises two issues as to his plea of no contest to both indictments.  In the first, denoted as his second issue on appeal, appellant asserts that the trial court abused its discretion by not sua sponte withdrawing appellant=s plea of no contest and entering a plea of Anot guilty@ on his behalf.  The second, listed as his third issue on appeal, complains that his trial counsel was ineffective for allowing him to enter a plea of no contest Ato two offenses he was not guilty of [sic].@

Both of these complaints arise out of statements made by appellant which appeared in the pre-sentence investigation report (APSI@), tendered to the trial court on August 4, 1999.  The PSI contained a statement by appellant to the investigating officer and a report from a psychologist, which contained denials by appellant that any intercourse had taken place and admissions only to fondling the child complainant.^[8]  His failure to admit to penetration, and admission only to touching the complainant, was also alluded to by the investigating officer who testified for the State at the August 4, 1999 hearing.^[9]

Appellant argues that, in light of his statements denying penetration,^[10]  the trial court should have  sua sponte withdrawn appellant=s plea of no contest and entered a plea of Anot guilty@ on his behalf.  He acknowledges that in the case of a plea of guilty or no contest to the trial court, the trial court is not required to sua sponte withdraw the plea, even if evidence is adduced that makes evident a defendant=s innocence or reasonably and fairly raises an issue as to his guilt.  Appellant argues, however, that the trial court abused its discretion in not sua sponte withdrawing the plea in the present case.  We disagree.

The cases cited by appellant to this Court as similar to his own, and supporting his argument, are all inapposite, as none involved the sua sponte withdrawal of the defendant=s plea to a trial court.  The decision in Payne pertained to a trial court=s refusal to grant the defendant=s request to withdraw his plea before the case was taken under advisement.  Payne v. State, 790 S.W.2d 649, 651-52 (Tex. Crim. App. 1990); see Jackson v. State, 590 S.W.2d 514, 515 (Tex. Crim. App. 1979) (defendant has the right to withdraw a guilty plea before a trial court takes a case under advisement).  There is no dispute in the present case that appellant never requested to withdraw his plea.  Saenz and Odem are both cases in which pleas of guilty were made before a jury B a situation in which a trial court is required to withdraw a plea of guilty or no contest if evidence reasonably and fairly raises a fact question as to innocence.  Odem v. State, 852 S.W.2d 685, 686 (Tex. App.BHouston [14th Dist.] 1993, pet. ref=d); Saenz v. State, 807 S.W.2d 10, 10-11  (Tex. App.BCorpus Christi 1991, no pet.); see Griffin v. State, 703 S.W.2d 193, 195 (Tex. Crim. App. 1986)(when a plea of guilty or no contest is entered in a felony case tried before a jury, the plea must be sua sponte withdrawn by the court if evidence is introduced which makes evident the innocence of the defendant, or which reasonably and fairly raises an issue as to that fact, unless such evidence is withdrawn).

As admitted by appellant, such standards do not apply to his case as his plea was to the court, not a jury and, in such circumstances, the trial court has no obligation to sua sponte withdraw a plea of guilty or no contest, even if evidence is presented which makes evident the innocence of the defendant or reasonably and fairly raises an issue thereto.  Thomas v. State, 599 S.W.2d 823, 824 (Tex. Crim. App. 1980); Moon v. State, 572 S.W.2d 681, 682 (Tex. Crim. App. 1978); Soliz v. State, 945 S.W.2d 300, 301-02 (Tex. App.BHouston [1st Dist.] 1997, pet. ref=d).  It is the trial court=s duty, as the trier of fact, to consider the evidence submitted and, based on the same, find the defendant guilty, guilty of a lesser-included offense, or not guilty.  Moon, 572 S.W.2d at 682.  If the trial court was convinced by appellant=s denials to the police and the psychologist, the court could have found him not guilty.  A plea of guilty or no contest alone is not sufficient to support a conviction under  Texas law.  Johnson v. State, 722 S.W.2d 417, 422 (Tex. Crim. App. 1986).  The State still has the burden to prove the case by introducing sufficient evidence to support the conviction.  Tex. Code Crim. Proc. Ann. art. 1.15 (Vernon Supp. 2002).^[11]  Since the trial court, as the trier of fact, was already under a duty to review and weigh the evidence submitted, it would serve no valid purpose for the trial court to sua sponte withdraw the plea of no contest.  Moon, 572 S.W.2d at 682. Moreover, in light of the evidence presented as to the child complainant=s statements, the medical evidence of trauma to the complainant indicative of intercourse, appellant=s plea of no contest, and his admission in the plea papers to Acommitting each and every element@ in the indictments, we find that the trial court did not abuse its discretion in not sua sponte withdrawing appellant=s plea of no contest.  We overrule this issue.^[12]

Appellant=s third, and related issue, is a claim of ineffective assistance of counsel.  We review claims of ineffective assistance of counsel under the standard enunciated in Strickland v. Washington, 466 U.S. 668, 687-96 (1984).  Thus, appellant must show that: (1) his counsel=s performance fell below an objective standard of reasonableness, based on prevailing professional norms, and (2) there is a reasonable probability that, but for the counsel=s unprofessional errors, the result of the proceeding would have been different.  McFarland v. State, 845 S.W.2d 824, 842 (Tex. Crim. App. 1992).  Furthermore, he must overcome the strong presumption that the challenged action might be considered sound trial strategy.  Brown v. State, 881 S.W.2d 582, 589 (Tex. App.BCorpus Christi 1994, no pet.)(citing Strickland, 466 U.S. at 689).

 Appellant complains that his trial counsel was ineffective because he Aacquiesced in and allowed the appellant to enter a no contest plea to two offenses that he was not guilty of [sic].@  He does not complain that his trial counsel should have asked that the pleas be withdrawn, but merely that his counsel should not have allowed him to plead no contest.  He cites case law stating that a plea of guilty based on significant misinformation is involuntary but does not identify any misinformation conveyed to him by his attorney.  Rather, he simply urges that since he denied any penetration, his trial counsel was inept for allowing him to plead no contest to the charges.  Specifically, he argues Ait is clear that Appellant=s trial lawyer caused the Appellant=s decision to enter a no contest plea [b]ut Appellant should not be required to bear the consequences of his attorney=s nonfeasance and/or misfeasance in essentially advising Appellant to plead no contest to something that Appellant was not guilty of [sic].@

While the legal effect of a no contest plea is the same as a guilty plea, the defensive posture of the defendant is different.  Brewster v. State, 606 S.W.2d 325, 329 (Tex. Crim. App. 1980).   While in a guilty plea, a defendant=s stance is AI admit the guilt of the accusation,@ in a no contest plea, the defendant=s posture is merely, AI will not contest the accusation.@  Id. A plea of no contest provides a means by which a defendant who does not wish to admit the truth of the prosecution=s evidence can still waive a trial and be convicted by the court. Stone v. State, 919 S.W.2d 424, 426-47 (Tex. Crim. App. 1996). Thus, if appellant was not guilty but nevertheless wanted to waive his right to a jury trial, and plead to and be convicted by the trial court, and if his counsel advised appellant to enter a plea of Ano contest@ rather than a plea of Aguilty,@ such would not be incorrect advice and so could not support a claim of ineffective assistance of counsel.

If appellant=s complaint  was meant to go instead to the decision to plead before the court rather than go to trial, claiming that some allegedly erroneous advice by his counsel caused him to enter a plea which was not made knowingly and thus not voluntary, the Strickland elements as applied to such a claim are more narrowly interpreted. Appellant must prove that: (1) the advice given by his attorney was not within the range of competence demanded of attorneys in criminal cases and (2) but for the attorney=s errors, appellant would, with a reasonable probability, not have pled no contest, but would have insisted on going to trial.  Ex Parte Moody, 991 S.W.2d 856, 857-58 (Tex. Crim. App. 1999).  Appellant must overcome the strong presumption that counsel=s actions fell within Aa wide range of reasonable representation,@ McFarland, 928 S.W.2d at 500 (Tex. Crim. App. 1996), and, if the record shows that appellant asserted at the plea hearing that he understood the consequences of his plea, a @heavy burden@ is placed on him at a later hearing to show a lack of voluntariness.  Solomon v. State, 39 S.W.3d 704, 707 (Tex. App.BCorpus Christi 2001, no pet.).  Furthermore, claims on appeal of misinformation leading to an involuntary plea, without supporting confirmation in the record, will not be sufficient for a reviewing court to find a plea involuntary.  Franklin v. State, 693 S.W.2d 420, 431 (Tex. Crim. App. 1985)(mere assertions in a brief not supported by evidence in the record insufficient); see also Fimberg v. State, 922 S.W.2d 205, 208 (Tex. App.BHouston [1st Dist.] 1996, pet. ref=d)(declining to find ineffective assistance of counsel where defendant claimed his plea was involuntary due to misinformation where there was no independent corroborating evidence of his claims).  AAny allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness.@  McFarland, 928 S.W.2d 482, 500 (Tex. Crim. App. 1996).

Appellant has not met his burden.  There was no motion for new trial raising such issue and hence no hearing on the same.  There was no objection or protest or raising of this issue until the appellate brief was filed.  The limited record before us indicates a voluntary plea.  Appellant=s representations in his AWaiver of Constitutional Rights, Agreement to Stipulate, and Judicial Confession@ and his AStatement and waivers of defendant@ demonstrate that he understood the charges against him, had consulted with his attorney, was fully satisfied with his attorney, and was entering his plea freely.  There is nothing in the record to contradict these statements.  Indeed, we have no record in the present case as to what advice the attorney gave or how that affected appellant=s decision and nothing to suggest that the decision not to go to trial was the attorney=s rather than appellant=s.  There is no evidence as to why appellant pled, what he relied on, what role his attorney played in that determination, and why his counsel took whatever actions he took.  There is certainly nothing in the record to prove that appellant would have chosen to go to trial, except for his attorney=s actions.  The record before us is simply not sufficient for this Court to find any ineffective assistance of counsel.^[13]  We overrule this issue.

Punishment Process and Sentence

Appellant=s final two issues both raise complaints of violations of his constitutional rights related to his sentence.  In his fourth issue, he complains that his due process rights under Article I, Section 19 of the Texas Constitution were violated because the trial court rejected his application for deferred adjudication and sentenced him to sixteen years in prison.  In his fifth issue, he asserts that his right under the Eighth and Fourteenth Amendments of the United States Constitution to be free from cruel and unusual punishment was violated when he was sentenced to sixteen years in prison.

In his fourth issue, appellant acknowledges that a trial court=s assessment of sentence will not be disturbed on appeal if it falls within the statutory limits, but argues that the appellate court may review the process by which the particular punishment was determined, citing as an example a punishment proceeding predicated on materially false information.  However, despite this assertion, appellant made no complaint below about the sentencing process and, on appeal, makes no complaint as to any aspect of the punishment process or of the Texas punishment procedure in general. Appellant argues instead that, in other cases involving aggravated sexual assault, other defendants have received lower sentences of imprisonment than he, or even received community supervision.  He asserts that this Asentencing disparity@ violates his right to due process and cites the federal court system of sentencing guidelines and the practice of Adownward departures@ as a model for this Court to consider, asserting that he was given a Avery severe prison sentence of a very harsh sentence [sic] of 16 years in prison.@

Similarly, in his fifth issue, appellant claims that the assessment of a sixteen- year prison sentence violated his right to be free from cruel and unusual punishment under the Eighth and Fourteenth Amendments of the United States Constitution^[14] because such sentence was grossly disproportionate to the seriousness of the offense committed as judged by the Aevolving standards of decency that mark the progress of a maturing society.@

We overrule both these issues.  Appellant made no objection to his sentence to the trial court, either at the time of sentencing or in any post-trial motion, on any grounds, nor did he ever lodge an objection, under constitutional or other grounds, to any part of the sentencing procedure or to the alleged disparity, cruelty, unusualness or excessiveness of the sentences.  Even constitutional claims can be waived by failure to object.  Smith v. State, 721 S.W.2d 844, 855 (Tex. Crim. App. 1986).  To preserve an error for appellate review, a party must present a timely objection to the trial court, state the specific grounds for the objection, and obtain a ruling.  Tex. R. App. P. 33.1.  Generally, an appellant may not complain of an error pertaining to his sentence or punishment if he has failed to object or otherwise raise error in the trial court.  Mercardo v. State, 718 S.W.2d 291, 296 (Tex. Crim. App. 1986); see also Rogers v. State, 640 S.W.2d 248, 264-65 (Tex. Crim. App. 1982)(op. on second reh=g)(when no objection was made to the trial court procedure, claim on appeal that due process was violated by court procedure was waived); Solis, 945 S.W.2d at 301(claim of grossly disproportionate sentence violative of Eighth Amendment waived by failure to object); Quintana v. State, 777 S.W.2d 474, 479 (Tex. App.BCorpus Christi 1989, pet. ref=d)(failure to object to sentence as cruel and unusual waives error). In the present case, by failing to object to the trial court=s procedures and sentence on the grounds alleged on appeal, appellant has waived these issues.

We note also that appellant premised his fourth issue as a challenge to procedural due process, but on appeal makes no complaint of any part of the sentencing procedure, nor does he cite any authority supporting his claim that disparity among defendants within the applicable range of punishment for a particular offense under state law is a due process violation.   Furthermore, even if the issue were preserved, it is well settled in Texas that a trial judge has absolute and unreviewable discretion to refuse or grant community supervision when the trial is before the court and a motion for community supervision is filed.  Nelson v. State, 573 S.W.2d 9, 12 (Tex. Crim. App. 1978)(A. . . the law is settled that the decision of whether or not to grant probation is absolutely within the discretion of the trial judge and that the decision not to grant probation is not appealable@); Lopez v. State, 556 S.W.2d 821, 823 (Tex. Crim. App. 1977)( A. . . when the trial is before the court and a motion for probation is filed, the trial judge has the absolute and unreviewable discretion either to refuse or to grant probation@).  In the present case, as we previously noted, appellant was not even eligible for court-ordered community supervision because of the offense involved,^[15] although this would not have barred the court from granting deferred adjudication, if it so chose. Cabezas v. State, 848 S.W.2d 693, 694 (Tex. Crim. App. 1993).   However, like court-ordered community supervision, the decision to grant or deny deferred adjudication community supervision is wholly within the discretion of the trial court and so would not be reviewable.  See Reed v. State, 644 S.W.2d 479, 484 (Tex. Crim. App. 1983)(A . . . deferred adjudication is entirely within the trial court=s discretion . . . [n]o defendant, absent a plea bargain, can be assured of receiving it@).

Likewise, in reference to appellant=s final issue, it is well-established that sentences that fall within the range of punishment are not cruel and unusual.  Samuel v. State, 477 S.W.2d 611, 614 (Tex. Crim. App. 1972).  Appellant=s sentences fell in the lower range of punishment for this offense.^[16]  We recognize that it has been held that a sentence within the range of punishment may still violate the Eighth Amendment if it is grossly disproportionate to the offense committed.  Solem v. Helm, 463 U.S. 277, 289 (1983).  However, the viability and mode of application of proportionate analysis in non-death penalty cases is currently in question.  See McGruder v. Puckett, 954 F.2d 313, 315-16 (discussing the various opinions issued in Harmelin v. Michigan, 501 U.S. 957 (1991) and their impact on the Solem decision).  In the present case, even if error had been preserved as to this argument, and assuming arguendo the viability of a proportionality review, sixteen years in prison was not a grossly disproportionate sentence for each of the charges under the facts of the offenses committed,^[17] and appellant=s prior history, and so no constitutional violation occurred.^[18]

Conclusion

Having overruled all of appellant=s substantive issues, we affirm the judgments of conviction and sentences of the trial court.                                                     

ERRLINDA CASTILLO

Justice

Do not publish.

Tex. R. App. P. 47.3(b).

Opinion delivered and filed

this 6th day of June, 2002.

---

^[1]Retired Judge Michael J. McCormick assigned to this Court by the Chief Justice of the Supreme Court of Texas pursuant to Tex. Gov=t Code Ann. ' 74.003 (Vernon 1998).

^[2] Tex. Pen. Code Ann.'22.021(a)(1)(B)(ii)(Vernon Supp. 2002).  The indictment alleged the penetration of the mouth of the child with his sexual organ.

^[3] Tex. Pen. Code Ann.'22.021(a)(1)(B)(i)(Vernon Supp. 2002). This indictment alleged that appellant placed his sexual organ in the sexual organ of the child.

⁴ Although appellant was originally represented by a court appointed counsel, he later retained counsel and it was his retained counsel who represented him at the time of the plea.

^[5] Appellant also gave up the right to have the court reporter record his plea; hence there is no reporter=s record for the hearing on April 23, 1999.

⁶ Because of the nature of the offenses, appellant was not eligible for court-ordered community supervision under the provisions of code of criminal procedure article 42.12, '3g(a)(E).  Tex. Code Crim. Proc. Ann. art. 42.12, '3g(a)(E)(Vernon Supp. 2002).  However, appellant did not ask for court-ordered community supervision at the punishment hearing but for deferred adjudication community supervision, which is not governed by that provision.  See Cabezas v. State, 848 S.W.2d 693, 694 (Tex. Crim. App. 1993)(noting that even where defendant not eligible for court ordered probation because offense was one listed in article 42.12, '3g, defendant was not foreclosed from requesting deferred adjudication community supervision).

⁷ Appellant lists this discussion as his first issue on appeal.  However, he makes no complaint of any error, but instead makes a prophylactic argument against a claim of waiver which he believes the State will raise.  Although the State makes no such claim, and agrees with appellant that we have jurisdiction, because of the disparity between the parties as to the basis for our jurisdiction, we will address the Aissue.@

⁸ The probation officer=s pre-sentence investigation report also contained a restatement of appellant=s comments to police, and in the evaluation noted that appellant had admitted touching the complainant but denied having intercourse with her.  In his statement to police, appellant declared, AI understand that I have been charged with the sexual molestation of [complainant], but it is not true.  I have not had intercourse with [complainant]. I have at time touched her breasts, her buttocks, her front area and her legs. I did not do anything else to her because she did not like it when I would touch her in these places.@  He then went on to describe various fondling incidents and other circumstances surrounding the abuse.  The psychologist noted in his report that appellant Areluctantly acknowledged fondling [the complainant=s] breasts two times while she was >asleep= . . . .He denied her accusations that he sexually penetrated her . . . . Juan denied that he penetrated [complainant] and would only admit fondling her two times.@

⁹ The witness testified, A . . . [appellant] was reluctant to admit when the evidence seemed to substantiate this and that B and that he molested [complainant] . . . It did not go into the detail that she described . . . . She had described an act of penetration . . . . He said he was sorry for touching her.@

¹⁰ Although appellant makes no specific argument on appeal, nor made any specific denial below, related to the penetration of the mouth of the complainant by the sexual organ of the defendant, as alleged in cause number 796836, we presume his argument on appeal that there was no admission by appellant of the Apenetration@ of the complainant is aimed at both forms of penetration alleged in the indictments.

¹¹ The relevant portion of article 1.15 reads, A. . . it shall be necessary for the state to introduce evidence into the record showing the guilt of the defendant and said evidence shall be accepted by the court as the basis for its judgment and in no event shall a person charged be convicted upon his plea without sufficient evidence to support the same.@  Tex. Code Crim. Proc. Ann. art. 1.15 (Vernon Supp. 2002).

¹² We note that even if appellant had requested that he be allowed to withdraw his plea at the time the statements were presented to the court, the trial court would not have been required to allow him to do so as such request would have been untimely.  Stone v. State, 951 S.W.2d 205, 206-07 (Tex. App.BHouston [14th Dist.] 1997, no pet.)(op. on remand).

¹³ As noted by the court of criminal appeals, in the majority of cases, the record is not sufficiently developed to allow for a review of a complaint of ineffective assistance of counsel on direct appeal.  Thompson v. State, 9 S.W.3d 808, 813-14 (Tex. Crim. App. 1999).

¹⁴ Appellant also states that he would follow the Texas rule of briefing federal and state issues separately, however, he cites to no section of the state constitution, cites no state cases on the issue, and makes no arguments as to state constitutional rights.  If appellant was attempting to make a state constitutional claim as to this issue, it has been waived.  Narvaiz v. State, 840 S.W.2d 415, 432 (Tex. Crim. App. 1992). In any case, Texas courts make no distinction between Texas and federal constitutional provisions relative to cruel and unusual punishment.  Cantu v. State, 939 S.W.2d 627, 639 (Tex. Crim. App. 1996).

^[15] See Tex. Code Crim. Proc. Ann., art. 42.12, '3g(a)(E)(Vernon Supp. 2002).

¹⁶ See Tex. Pen. Code. Ann. ''22.021(e) & 12.32(a)(Vernon 1994 & Supp. 2002)(aggravated sexual assault of a child is a first degree felony and punishment for a first degree is imprisonment in the institutional division for life or for any term not more than 99 years or less than 5 years; in addition to imprisonment, a fine not to $10,000 may also be imposed).

¹⁷ Evidence presented to the trial court indicated acts of sexual contact, oral sex, and vaginal sex for a three year period, beginning when the child complainant was eight years old, as well as injury to the child=s sexual organ and emotional health.

¹⁸ The McGruder court, analyzing the Supreme Court=s splintered action in Harmelin,501 U.S. 957, 965 (1991), concluded that Athis much is clear: disproportionality survives, Solem does not.@  McGruder v. Pucket, 954 F.2d 313, 316 (5^th Cir. 1992).  Solem required an analysis of three questions: (1) the gravity of the offense and the harshness of the sentence; (2) the sentences imposed on other criminals in the same jurisdiction; and (3) the sentences imposed for commission of the same crime in other jurisdictions.  Solem, 463 U.S. 277, 292 (1983). The McGruder court, drawing on one of the three opinions issued in Harmelin, refined the Solem analysis to  explicitly require a threshold comparison of the harshness of the sentence and the gravity of the offense, and then only if the court inferred that the sentence is grossly disproportionate would it consider the remaining two factors enunciated by Solem.  McGruder, 954 F.2d at 316.  This Court has been cautious about applying the McGruder analysis.  Sullivan v. State, 975 S.W.2d 755, 757 (Tex. App.BCorpus Christi 1998, no pet.).  We need not consider its application today because the proportionality issue was not preserved and because no evidence as to the last two Solem factors was submitted to the trial court. Therefore no comparative analysis can be performed.