Christopher Lee Southern v. State ( 2007 )

NUMBERS 13-07-202-CR and 13-07-203-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

CHRISTOPHER LEE SOUTHERN, Appellant,

v.

THE STATE OF TEXAS, Appellee.

On appeal from the 94th District Court of Nueces County, Texas.

MEMORANDUM OPINION

Before Chief Justice Valdez and Justices Garza and Vela Memorandum Opinion by Justice Garza

This is an appeal from a revocation proceeding, cause number 13-07-00202-CR, and from a conviction for aggravated assault, cause number 13-07-00203-CR. See Tex. Penal Code Ann. § 22.02(a)(1) (Vernon Supp. 2006). By one issue, in an appeal taken in both causes, appellant, Christopher Lee Southern, claims his sentences are disproportionate to the severity of the offenses in violation of the Eighth and Fourteenth Amendments to the United States Constitution. See U.S. Const. amend. VIII; see also U.S. Const. amend. XIV. ⁽¹⁾ We affirm. ⁽²⁾

I. Background

On December 7, 2005, appellant pleaded guilty to three counts of sexual assault in cause number 13-07-00202-CR. See Tex. Penal Code Ann. § 22.011(a)(1)(A) (Vernon Supp. 2006). The trial court deferred adjudication of appellant's guilt, placed appellant on community supervision for ten years, and assessed a fine of $3,000. On January 5, 2007, the State filed an aggravated assault charge against appellant, in cause number 13-07-00203-CR, for the aggravated assault of his girlfriend Maricruz Maldonado. See Tex. Penal Code Ann. § 22.02(a)(1). Also on January 5, 2007, the State filed a motion to revoke appellant's community supervision and adjudicate his guilt, alleging appellant violated a condition of his supervision by committing the aggravated assault of Maldonado. On February 27, 2007, the State amended its motion to revoke appellant's community supervision to include the following violations: (1) appellant was indicted for aggravated assault, a second-degree felony, pursuant to section 22.02(a)(1) of the Texas Penal Code; (2) appellant failed to pay a court imposed fine of $250.00 per month from January 1, 2006 to December 1, 2006; (3) appellant failed to pay attorney's fees in the amount of $1,270; (4) appellant failed to pay monthly supervision fees of $25.00 from January 1, 2006 to the present; and (5) appellant failed to pay monthly sex offender fees of $5.00 from January 1, 2006 to the present. See id.

At the revocation hearing, the trial court revoked appellant's community supervision and sentenced him to three twenty-year terms of imprisonment for each of the three counts of sexual assault. See id. § 22.011(a)(1)(A). ⁽³⁾ Immediately thereafter, in cause number 13-07-00203-CR, appellant pleaded guilty to the aggravated assault charge, and the trial court sentenced him to twenty years' imprisonment. See id. § 22.02(a)(1). The trial court ordered all of the sentences imposed to run concurrently. On March 23, 2007, appellant filed a notice of appeal with the trial court. This appeal ensued. II. Analysis

As a preliminary matter, we address the State's contention that appellant has waived any error by failing to object to the sentences in the trial court. See Tex. R. App. P. 33.1(a); Rhoades v. State, 934 S.W.2d 113, 120 (Tex. Crim. App. 1996). To preserve error for appellate review, the complaining party must make a timely, specific objection. Hull v. State, 67 S.W.3d 215, 217 (Tex. Crim. App. 2002); Turner v. State, 805 S.W.2d 423, 431 (Tex. Crim. App. 1991); see Tex. R. App. P. 33.1(a) ("As a prerequisite to presenting a complaint for appellate review, the record must show that: (1) the complaint was made to the trial court by a timely request, objection, or motion . . . and (2) the trial court: (A) ruled on the request, objection, or motion either expressly or implicitly; . . . ."). "'All a party has to do to avoid the forfeiture of a complaint on appeal is to let the trial judge know what he wants, why he thinks himself entitled to it, and to do so clearly enough for the judge to understand him at a time when the trial court is in a proper position to do something about it.'" Keeter v. State, 175 S.W.3d 756, 760 (Tex. Crim. App. 2005) (quoting Lankston v. State, 827 S.W.2d 907, 909 (Tex. Crim. App. 1992) (en banc)).

Texas courts have consistently held that even constitutional errors involving disproportionate sentences can be waived by failing to object at trial. See Curry v. State, 910 S.W.2d 490, 497-98 (Tex. Crim. App. 1995) (citing Garcia v. State, 887 S.W.2d 846, 861 (Tex. Crim. App. 1994) (failure to raise Eighth Amendment objection at trial waives any such claim on appeal)); Solis v. State, 945 S.W.2d 300, 301 (Tex. App.-Houston [1st Dist.] 1997, pet. ref'd) (holding that a claim of grossly disproportionate sentence violative of the Eighth Amendment was forfeited by failure to object); Quintana v. State, 777 S.W.2d 474, 479 (Tex. App.-Corpus Christi 1989, pet. ref'd) (holding that failure to object to a sentence as cruel and unusual forfeits error). Here, the record reflects that appellant did not object to the imposition of punishment at trial nor did he raise the complaint in a motion for new trial. See Tex. R. App. P. 33.1(a). Accordingly, we conclude that appellant failed to preserve this complaint for review. ⁽⁴⁾

In any event, the punishment does not violate constitutional provisions. The Eighth Amendment does not require strict proportionality between the crime and the sentence; rather it forbids only extreme sentences that are grossly disproportionate. See Ewing v. California, 538 U.S. 11, 23 (2003); see also Henry v. State, No. 13-03-614-CR, 2004 Tex. App. LEXIS 7440, at **3-4 (Tex. App.-Corpus Christi Aug. 19, 2004, no pet.) (mem. op., not designated for publication). Texas courts have traditionally held that, as long as the punishment assessed is within the range prescribed by the Legislature in a valid statute, the punishment is not excessive. See Jordan v. State, 485 S.W.2d 949, 952 (Tex. Crim. App. 1973); Trevino v. State, 174 S.W.3d 925, 928 (Tex. App.-Corpus Christi 2005, pet. ref'd); see also Escochea v. State, 139 S.W.3d 67, 80 (Tex. App.-Corpus Christi 2004, no pet.).

In cause number 13-07-00203-CR, appellant was charged with the offense of aggravated assault, a second degree felony. Tex. Penal Code Ann. § 22.02(a)(1), (b) Appellant was also charged with three counts of sexual assault in cause number 13-07-00202-CR, which constitute second degree felonies. See Tex. Penal Code Ann. § 22.011(f). The Texas Penal Code provides that "[a]n individual adjudged guilty of a felony of the second degree shall be punished by imprisonment in the institutional division for any term of not more than 20 years or less than 2 years" and, "[i]n addition to imprisonment, . . . may be punished by a fine not to exceed $10,000." Tex. Penal Code Ann. § 12.33(a)-(b) (Vernon 2003). Appellant was sentenced to twenty years' imprisonment for each of the three sexual assault charges and to twenty years' imprisonment for the aggravated assault charge. The trial court ordered all of the sentences imposed to run concurrently.

The sentences assessed were within the statutorily permissible range and were based on admissible evidence adduced at the revocation hearing. See id.; see also Hawkins v. State, 112 S.W.3d 340, 345 (Tex. App.-Corpus Christi 2003, no pet.) (citing Jordan, 495 S.W.2d at 952). Thus, appellant's sentences are not grossly disproportionate to the offenses. See Ewing, 538 U.S. at 23; see also Henry, 2004 Tex. App. LEXIS 7440, at **3-4. Because appellant has failed to preserve his complaint on appeal, and because his sentence fell within the limits prescribed by a valid statute, we overrule appellant's issues in cause numbers 13-07-00202-CR and 13-07-00203-CR.

III. Conclusion

The judgments of the trial court are affirmed.

_______________________

DORI CONTRERAS GARZA,

Justice

Do not publish.

Tex.R.App.P. 47.2(b)

Memorandum Opinion delivered and

filed this the 8th day of November, 2007.

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