Orlando Amaro v. State ( 2020 )

NUMBER 13-20-00104-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
ORLANDO AMARO, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 156th District Court
of Bee County, Texas.
MEMORANDUM OPINION
Before Justices Benavides, Longoria, and Tijerina
Memorandum Opinion by Justice Tijerina
Appellant Orlando Amaro was convicted of possession of a controlled substance
penalty group 1-Methamphetamine (four grams or more but less than 200 grams,
including any adulterants or dilutants), a second-degree felony, and was sentenced to
twenty years’ confinement. See HEALTH & SAFETY CODE ANN. § 481.115(d). By what we
construe as two issues, Amaro contends that the sentence was excessive in violation of
the Eighth Amendment to the United States Constitution and that the State made
improper jury argument during the punishment phase. See U.S. CONST. amend. VIII. We
affirm.
I. SENTENCE
By his first issue, Amaro contends that the sentence imposed was excessive in
violation of the Eighth Amendment of the United States Constitution. See U.S. CONST.
amends. VIII, XIV.
A. Standard of Review and Applicable Law
The trial court’s decision on punishment is reviewed for an abuse of discretion.
Jackson v. State, 680 S.W.2d 809, 814 (Tex. Crim. App. 1984); Quintana v. State, 777
S.W.2d 474, 479–80 (Tex. App.—Corpus Christi–Edinburg 1989, writ ref’d). “Subject only
to a very limited, ‘exceedingly rare,’ and somewhat amorphous Eighth Amendment gross-
disproportionality review, a punishment that falls within the legislatively prescribed range,
and that is based upon the sentencer’s informed normative judgment, is unassailable on
appeal.” Ex parte Chavez, 213 S.W.3d 320, 323–24 (Tex. Crim. App. 2006); Trevino v.
State, 174 S.W.3d 925, 928 (Tex. App.—Corpus Christi–Edinburg 2005, pet. ref’d)
(explaining that most likely a sentence will not be overturned on appeal if it is assessed
within the legislatively determined range).
The Eighth Amendment of the United States Constitution provides that “[e]xcessive
bail shall not be required, nor excessive fines, nor cruel and unusual punishment inflicted.”
U.S. CONST. amend. VIII. The Eighth Amendment applies to punishments imposed by
state courts through the Due Process Clause of the Fourteenth Amendment. Id. amend.
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XIV. This right and almost every constitutional or statutory right can be waived by a “failure
to object.” Smith v. State, 721 S.W.2d 844, 855 (Tex. Crim. App. 1986); Kim v. State, 283
S.W.3d 473, 475 (Tex. App.—Fort Worth 2009, pet. ref'd); Noland v. State, 264 S.W.3d
144, 151–52 (Tex. App.—Houston [1st Dist.] 2007, pet. ref’d). To preserve a complaint of
disproportionate sentencing, the criminal defendant must make a timely, specific
objection to the trial court or raise the issue in a motion for new trial. Kim, 283 S.W.3d at
475; Noland, 264 S.W.3d at 151–52; Trevino v. State, 174 S.W.3d at 927–28.
B. Analysis
Here, Amaro did not object when the trial court pronounced the sentence; however,
in a motion for new trial, Amaro complained that the sentence violated the Eighth
Amendment. Therefore, Amaro preserved this issue for our review. See TEX. R. APP. P.
33.1; Kim, 283 S.W.3d at 475; Noland, 264 S.W.3d at 151–52; Trevino, 174 S.W.3d at
927–28. Nonetheless, a punishment falling within the limits prescribed by a valid statute,
as in this case, is not excessive, cruel, or unusual.1 See Trevino, 174 S.W.3d at 928.
Therefore, because the sentence is within the punishment range, and Amaro has not
otherwise shown that his sentence was grossly disproportionate, we overrule Amaro’s
first issue. See TEX. PEN. CODE ANN. § 12.33 (“An individual adjudged guilty of a felony of
the second degree shall be punished by imprisonment in the Texas Department of
Criminal Justice for any term of not more than 20 years or less than 2 years.”); Ex parte
Chavez, 213 S.W.3d at 323–24; Trevino, 174 S.W.3d at 927–28 (“Punishment which falls
1In his brief, Amaro acknowledges that his sentence is within the statutory limits and that usually
a sentence within those limits does not run afoul of the constitution.
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within the limits prescribed by a valid statute is not excessive, cruel, or unusual.”).
II. THE STATE’S CLOSING ARGUMENT
By what we construe as his second issue, Amaro contends that the State made an
improper statement during its closing argument during the punishment phase of his trial.
Specifically, Amaro claims that the State made an analogy that improperly influenced the
jury when it determined his punishment.
During the punishment phase of Amaro’s trial, the State argued the following:
Ladies and gentlemen, during the guilt or innocence stage of trial, it’s the
jury’s responsibility to be a gatekeeper. To protect the defendant from
overreaching by the State. He is presumed to be innocent until the State
proves otherwise, which we did yesterday. Sometimes you hear the cliche
you’re innocent until proven guilty, that’s incorrect. It’s an incorrect
statement of the legal cliche. It is in a court of law one is presumed to be
innocent until proven guilty. You’re either guilty—you’re innocent until you
commit a crime, whether it’s ever discovered or not. So when you found him
guilty, you didn’t make him guilty, he was already guilty. Just like a
prospector who finds a nugget of gold in the ground, he didn’t make the
gold. He simply discovered what was already there. You correctly found that
yes he was guilty of the offence that we charged. Now today your focus is
no longer on protecting the defendant from overreaching by the State.
Your position is protecting the community from him and people like
him. That’s your responsibility. Your first responsibility is to the community,
and no longer to the defendant.
Specifically, Amaro takes issue with the State’s analogy that the jury was like “a
prospector who finds a nugget of gold in the ground, he didn’t make the gold. He simply
discovered what was already there.” Amaro argues as follows: “In the instant case, the
prosecutor’s comments about defendant already being guilty before ever starting trial
effectively confused the jury as to the burden of proof and constituted burden shifting,
causing them [to] elevate their sentence to the maximum. The result would have been
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different had not these comments been made.”
“[A] defendant’s failure to object to a jury argument or to pursue to an adverse
ruling his objection to a jury argument forfeits the right to complain about the argument
on appeal.” Threadgill v. State, 146 S.W.3d 654, 670 (Tex. Crim. App. 2004) (citing
Cockrell v. State, 933 S.W.2d 73, 89 (Tex. Crim. App. 1996)). Amaro did not object to the
complained-of statements at the time they were made. We note that Amaro filed a motion
for new trial contending that the State committed reversible error when it made the
complained-of comments. However, objections to alleged improper argument must be
made contemporaneously. See Grado v. State, 445 S.W.3d 736, 741 (Tex. Crim. App.
2014) (recognizing that in Cockrell, 933 S.W.2d at 89, it determined that a defendant
forfeits his appellate complaint by not contemporaneously objecting to improper jury
argument); Priester v. State, 478 S.W.3d 826, 841 (Tex. App.—El Paso 2015, no pet.)
(“In the present case, Appellant’s complaint about the prosecutor’s closing argument falls
into the third category of forfeitable rights, as set forth in both Grado and Marin, and we
therefore conclude that [by not objecting] Appellant forfeited his right to complain on
appeal about the prosecutor’s closing argument.”); Barnes v. State, 70 S.W.3d 294, 307–
08 (Tex. App.—Fort Worth 2002, pet. ref’d) (explaining that a contemporaneous objection
is required each time the objectionable jury argument is made to preserve error). Here,
Amaro failed to object when the complained-of statements were made thereby failing to
preserve his complaint about the improper jury argument for appeal. See Davis v. State,
329 S.W.3d 798, 823 (Tex. Crim. App. 2010) (“Defense counsel failed to object the first
time the prosecutor argued that appellant was a con man who spent four hours on the
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stand” so he did not preserve error); Threadgill, 146 S.W.3d at 670 (“Because appellant
failed to object to the jury argument [during the punishment phase], he has forfeited his
right to raise the issue on appeal.”); Barnes, 70 S.W.3d at 307–08 (explaining that a
contemporaneous objection is required each time the objectionable jury argument is
made to preserve error). We overrule Amaro’s second issue.
III. CONCLUSION
We affirm the trial court’s judgment.
JAIME TIJERINA
Justice
Do not publish.
TEX. R. APP. P. 47.2 (b).
Delivered and filed the
17th day of December, 2020.
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