Williamson v. State , 2005 Tex. App. LEXIS 8183 ( 2005 )

175 S.W.3d 522 (2005)

Aaron Dale WILLIAMSON, Appellant,
v.
The STATE of Texas, Appellee.

No. 06-05-00072-CR.

Court of Appeals of Texas, Texarkana.

Submitted September 20, 2005. Decided October 4, 2005.

Lew Dunn, Longview, for appellant.

Ray Bowman, Asst. Dist. Atty., Longview, for appellee.

Before MORRISS, C.J., ROSS and CARTER, JJ.

OPINION

Opinion by Justice CARTER.

Aaron Dale Williamson appeals from his conviction by a jury on three counts of aggravated sexual assault on a child. Williamson pled guilty to the charges without a negotiated plea agreement, and a jury assessed punishment at life imprisonment and a $10,000.00 fine for each count. The trial court ordered consecutive sentences.

Williamson contends on appeal that consecutive sentences violate his constitutional rights against cruel and unusual punishment. Williamson did not object at trial to the sentence or to the cumulation of sentences based on constitutional grounds.

To preserve his complaint for appellate review, Williamson must have presented to the trial court a timely request, objection, or motion that stated the specific grounds for the desired ruling, if not apparent from the context. See TEX.R.APP. P. 33.1(a)(1); Mosley v. State, 983 S.W.2d 249, 265 (Tex. Crim.App.1998); Nicholas v. State, 56 S.W.3d 760, 768 (Tex.App.-Houston [14th Dist.] 2001, pet. ref'd) (failure to complain to trial court about consecutive sentencing waived claim of error).

However, Williamson's motion for new trial contains a contention that the sentence was disproportionate to the offense. This Court has held that a defendant is required to raise a disproportionality objection in a timely manner. Hookie v. State, 136 S.W.3d 671, 679-80 (Tex.App.Texarkana 2004, no pet.); Jackson v. State, 989 S.W.2d 842, 845 (Tex.App.-Texarkana 1999, no pet.). However, as we have recently held, a motion for new trial, in this context, is an appropriate way to preserve the claim for review. Delacruz v. State, 167 S.W.3d 904 (Tex.App.-Texarkana 2005, no pet.).

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, cruel, or unusual. See, e.g., Jordan v. State, 495 S.W.2d 949, 952 (Tex. Crim.App.1973). However, in Jackson, 989 S.W.2d at 845, we recognized that a prohibition against grossly disproportionate punishment survives under the Eighth Amendment to the United States Constitution apart from any consideration of whether the punishment assessed is within the range established by the Legislature. See also Fluellen v. State, 71 S.W.3d 870, 873 (Tex.App.-Texarkana 2002, pet. ref'd).

This case presents a different approach to this issue. Williamson does not argue that each individual sentence is excessive — rather, he argues that to stack three life terms is a violation of the constitutional prohibition against cruel and unusual punishment.

We first recognize that there is authority stating that the cumulation of sentences does not constitute cruel and unusual punishment. 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). Baird, however, does not discuss the argument in any depth, but simply concludes that, because the Legislature authorized stacking, it was not unlawful. Stevens agreed with Baird, and the Quintana opinion did likewise.^[1] The Stevens court cited authority from the Nineteenth Century holding that a forerunner of the general statute^[2] allowing a court to choose whether sentences are cumulative or consecutive does not violate Article I, Section 13 of the Texas Constitution. See TEX. CONST. art. I, § 13. Even Stevens, however, referred to a Fifth Circuit federal case as authority in connection with an Eighth Amendment claim, and provides little actual analysis of the issue. See Boerngen v. United States, 326 F.2d 326 (5th Cir.1964); Stevens, 667 S.W.2d at 538.

In this case, the consecutive sentence option was provided by TEX. PEN.CODE ANN. § 3.03(b)(2)(A) (Vernon 2003). It provides the trial court with the option of choosing whether the sentences run concurrently or consecutively for convictions for multiple acts arising out of the same criminal episode for sexual offenses of this type.

Williamson acknowledges the authority, but argues that it is dated and not applicable given the most recent pronouncements of the United States Supreme Court and its changing analysis of what is proper. Specifically, Williamson refers to Roper v. Simmons, 543 U.S. 551, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005), and the language in that opinion recognizing the "evolving standards of decency that mark the progress of a maturing society" and their application to the determination of what punishments are so disproportionate as to be cruel and unusual. Id. at 1190. In that analysis, the United States Supreme Court also looked at international law and the treatment of juvenile offenders in other civilized countries. Likewise, Williamson directs us to the law of the International Criminal Court and the Federal Republic of Germany for consideration of "the evolving standards of decency. . . ."

Williamson urges this Court to follow the same track in our analysis of the effect of incarcerating a person for three life-times. There is some logic, from the viewpoint of a punishment-based rather than a rehabilitation-based model, in sentencing a person to jail for three twenty-year terms for three separate charges. That logic is less apparent when the defendant with a single life is sent to jail for three consecutive life sentences. We also acknowledge, as counsel points out, that there is no unanimity world-wide about the imposition of consecutive sentences for multiple infractions committed during the same criminal episode.^[3]

We are not, however, convinced that theories have been adopted either by federal or by Texas courts that would lead to the conclusion that imposition of consecutive life sentences is cruel and unusual, or disproportionate to the offenses committed. In this case, we are confronted with three first-degree felony offenses, each of which the jury found to be deserving of a sentence of life imprisonment. The type of sexual offenses against a child are those for which the Legislature has explicitly allowed consecutive sentences.

As we set out in Alberto v. State, 100 S.W.3d 528, 530 (Tex.App.-Texarkana 2003, no pet.), our proportionality analysis is guided by (1) the gravity of the offense and the harshness of the penalty; (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. See Solem v. Helm, 463 U.S. 277, 292, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983). Only if we find that the sentence is grossly disproportionate to the offense will we then consider the remaining factors of the Solem test and compare the sentence received to sentences for similar crimes in the same jurisdiction and to sentences for the same crime in other jurisdictions. Alberto, 100 S.W.3d at 530.

We cannot say that the imposition of consecutive sentences results in grossly disproportionate punishment for the offenses for which Williamson was convicted. Further, there is no evidence in the record comparing this result with others in the same jurisdiction for this situation, or those imposed on defendants in other jurisdictions who committed a series of similar offenses. See id. For all of those reasons, disproportionate sentencing has not been shown, and we conclude that, in the absence of direction from superior courts altering the standards of our analysis, the imposition of consecutive sentences under these facts is not cruel and unusual punishment.

We affirm the judgment.

NOTES

[1] We also acknowledge that this Court has followed this authority in an unpublished opinion. See Dixon v. State, No. 06-03-00200-CR, 2004 WL 1301224, at *1, 2004 Tex.App. LEXIS 5184, at *2 (Tex.App.-Texarkana June 14, 2004, pet. ref'd) (mem.op.) (not designated for publication).

[2] TEX.CODE CRIM. PROC. ANN. art. 42.08 (Vernon Supp.2004-2005).

[3] The State points out that some standards for punishing those convicted of sexually abusing children are evolving toward harsher sentencing. Two states, Georgia and Louisiana, have recently provided that the death penalty may be assessed in cases involving the rape of a child. LA.REV.STAT. ANN. § 14:42(D)(2)(a) (2005); GA.CODE ANN. § 16-6-1(b) (2005). Texas has indicated a desire to more seriously punish those who sexually assault children by the passage of this law allowing consecutive sentences for certain sexual offenses. See TEX. PEN.CODE ANN. § 3.03 (Vernon 2003).