Nelson Mauricio Segovia-Amaya v. State

In The
Court of Appeals
Ninth District of Texas at Beaumont
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NO. 09-18-00318-CR
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NELSON MAURICIO SEGOVIA-AMAYA, Appellant
V.
THE STATE OF TEXAS, Appellee
__________________________________________________________________
On Appeal from the 9th District Court
Montgomery County, Texas
Trial Cause No. 16-12-14898-CR
__________________________________________________________________
MEMORANDUM OPINION
A jury convicted appellant Nelson Mauricio Segovia-Amaya of murder, and
the trial judge assessed punishment at confinement for life. See Tex. Penal Code
Ann. § 19.02. In three issues, Segovia-Amaya argues that (1) his sentence constitutes
cruel and unusual punishment, and the trial court erred by denying his motion for
new trial because (2) the jury was improperly instructed, and (3) the challenged
instruction, which was based upon article 37.07, § 2(a) of the Texas Code of
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Criminal Procedure, unconstitutionally shifted the burden of proof to Segovia-
Amaya. We affirm the trial court’s judgment.
ISSUE ONE
In his first issue, Segovia-Amaya argues that his sentence of life imprisonment
constituted cruel and unusual punishment and is grossly disproportionate to the
offense in violation of the U.S. and Texas constitutions. See U.S. Const. amend. VIII;
Tex. Const. art. I, § 13. Generally, a sentence that is within the range of punishment
established by the Legislature is not excessive, cruel, or unusual, and will not be
disturbed on appeal. State v. Simpson, 488 S.W.3d 318, 323 (Tex. Crim. App. 2016);
Jackson v. State, 680 S.W.2d 809, 814 (Tex. Crim. App. 1984). Rarely will an
appellate court consider a punishment range for the offense excessive,
unconstitutionally cruel, or unusual under either Texas law or the United States
Constitution. See Kirk v. State, 949 S.W.2d 769, 772 (Tex. App.—Dallas 1997, pet.
ref’d); see also Jackson v. State, 989 S.W.2d 842, 846 (Tex. App.—Texarkana 1999,
no pet.). An exception to this general rule is recognized when the sentence is grossly
disproportionate to the offense. Solem v. Helm, 463 U.S. 277, 289-90 (1983). With
the exception of cases involving capital punishment, successful challenges to the
proportionality of particular sentences are exceedingly rare. Id.
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In determining whether a sentence is grossly disproportionate to a particular
defendant’s crime, we consider (1) the severity of the sentence in light of the harm
caused to the victim; (2) the defendant’s culpability; and (3) the defendant’s prior
adjudicated and unadjudicated offenses. Simpson, 488 S.W.3d at 323. In the rare
case in which this threshold comparison leads to an inference of gross
disproportionality, we then compare the defendant’s sentence with the sentences of
other offenders in Texas and with the sentences imposed for the same crime in other
jurisdictions. Id. “If this comparative analysis validates an initial judgment that the
sentence is grossly disproportionate, the sentence is cruel and unusual.” Id.
Murder is a first-degree felony offense, which carries a punishment range of
confinement for life or for any term of not more than ninety-nine years or less than
five years. Tex. Penal Code Ann. §§ 12.32(a), 19.02(c). In addition to imprisonment,
a first-degree felony may also be punished by a fine not to exceed $10,000. Id. §
12.32(b). As discussed above, the trial judge assessed Segovia-Amaya’s punishment
at confinement for life. The trial judge did not impose a fine. Segovia-Amaya
testified that he shot the victim, but he explained that the victim had a gun and had
previously threatened him, and he believed the victim intended to shoot him.
Segovia-Amaya testified that he fled the scene after the shooting. A forensic
pathologist testified that the victim was shot seven times, and the cause of the
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victim’s death was multiple gunshot wounds. Evidence was also introduced in the
punishment phase that Segovia-Amaya had previously been convicted of driving
while intoxicated and two charges of failure to identify himself to a police officer.
Having reviewed the entire record, we cannot conclude that this is one of those
rare cases that leads to the inference that the sentence imposed was cruel and unusual
or grossly disproportionate to the offense. See Solem, 463 U.S. at 289-90; Simpson,
488 S.W.3d at 323; see also Kirk, 949 S.W.2d at 772. Accordingly, we overrule issue
one.
ISSUE TWO
In issue two, Segovia-Amaya contends the trial court erred by denying his
motion for new trial because the jury was improperly charged that its sole duty was
to “determine the guilt or innocence of the Defendant under the indictment[.]”
Segovia-Amaya notes that article 37.07, § 2(a) of the Texas Code of Criminal
Procedure requires the trial court to “submit to the jury the issue of guilt or innocence
of the defendant[,]” and he notes that although both the challenged instruction and
article 37.07, § 2(a) use the phrase “guilt or innocence[,]” the trial court had “no
apparent reason” to have tracked the statutory language from article 37.07, § 2(a).
In addition, Segovia-Amaya asserts that “[t]he argument that ‘tracking’ article 37.07,
§ 2(a) cures the error is disingenuous[,] and it disregards . . . article 37.07(b), § 1(b),
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which specifically instructs that” if a defendant pleads not guilty, jurors must find
that the defendant is either guilty or not guilty.
When reviewing alleged charge error, we determine whether error existed in
the charge and, if so, whether sufficient harm resulted from the error to compel
reversal. Ngo v. State, 175 S.W.3d 738, 744 (Tex. Crim. App. 2005). If no error
occurred, our analysis ends. See Kirsch v. State, 357 S.W.3d 645, 649 (Tex. Crim.
App. 2012). If, as here, the defendant does not object to the alleged charge error at
trial, we may reverse the judgment only if the error is so egregious that the defendant
did not receive a fair and impartial trial. Almanza v. State, 686 S.W.2d 157, 171
(Tex. Crim. App. 1984) (op. on reh’g); see also Herron v. State, 86 S.W.3d 621, 632
(Tex. Crim. App. 2002). Even if alleged jury-charge error was raised in a motion for
new trial, unpreserved jury-charge error does not require a new trial unless the error
caused egregious harm. Ngo, 175 S.W.3d at 743-44; Almanza, 686 S.W.2d at 171.
In assessing the degree of harm, we must consider the entire jury charge, the state of
the evidence, the argument of counsel, and any other relevant information revealed
by the record. Almanza, 686 S.W.2d at 171. We must examine the charge in its
entirety rather than a series of isolated statements. Holley v. State, 766 S.W.2d 254,
256 (Tex. Crim. App. 1989); Iniguez v. State, 835 S.W.2d 167, 170 (Tex. App.—
Houston [1st Dist.] 1992, pet. ref’d). “Egregious harm is a difficult standard to prove
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and such a determination must be done on a case-by-case basis.” Hutch v. State, 922
S.W.2d 166, 171 (Tex. Crim. App. 1996).
Some of our sister courts have concluded that a jury instruction like the
instruction Segovia-Amaya challenges is not erroneous. See Avila v. State, 15
S.W.3d 568, 576-77 (Tex. App.—Houston [14th Dist.] 2000, no pet.); Flores v.
State, 920 S.W.2d 347, 357 (Tex. App.—San Antonio 1996), pet. dism’d,
improvidently granted, 940 S.W.2d 660 (Tex. Crim. App. 1996); Barnes v. State,
855 S.W.2d 173, 175 (Tex. App.—Houston [14th Dist.] 1993, pet. ref’d). The
instruction is designed to draw the jury’s attention to the first phase of a bifurcated
criminal trial (the guilt-innocence phase) and to direct the jury away from
considering other issues, including punishment. See Barnes, 855 S.W.2d at 175. In
this case, the jury charge instructed the jury that (1) “[a]ll persons are presumed to
be innocent and no person may be convicted of an offense unless each element of
the offense is proved beyond a reasonable doubt[;]” (2) “[t]he law does not require
a Defendant to prove his innocence or produce any evidence at all[;]” and (3) “[t]he
prosecution has the burden of proving the Defendant guilty and it must do so by
proving each and every element of the offense charged beyond a reasonable
doubt[,]” and “[i]f it fails to do so, you must acquit the Defendant.”
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Segovia-Amaya acknowledges the holdings of our sister courts regarding the
complained-of instruction, and he also argues that the pattern jury charges have
“changed since 1975 and . . . the current version has replaced ‘guilt or innocence’
with ‘Your sole duty at this point is to determine whether the defendant has been
proved guilty.” See State Bar of Texas, Texas Criminal Pattern Jury Charges—
General, Evidentiary & Ancillary Instructions, § 2.1 (2015). Segovia-Amaya did not
cite any authorities that require this Court to find that the trial court erred by using
language that differed from the language contained in the pattern jury charge, nor
are we are aware of any. See Tex. R. App. P. 38.1(i). The pattern jury charges are
“suggestions and guides” that “have no official status.” State Bar of Texas, Texas
Criminal Pattern Jury Charges—General, Evidentiary & Ancillary Instructions,
Introduction. “Appellate courts are unlikely to regard trial judges’ refusal to use the
Committee’s jury instructions as reversible error.” Id. We conclude that the trial
court’s instruction was not erroneous. Although we need not determine whether any
harm resulted because we have found no error, we further conclude that even if the
trial court’s instruction were erroneous, Segovia-Amaya has not established
egregious harm. Having examined the entire jury charge, the state of the evidence,
the argument of counsel, and any other relevant information revealed by the record,
we cannot conclude that the error was so egregious as to deny Segovia-Amaya a fair
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and impartial trial. See Almanza, 686 S.W.2d at 171. Accordingly, we overrule issue
two.
ISSUE THREE
In issue three, Segovia-Amaya argues that the trial judge erred by denying his
motion for new trial because the complained-of instruction, which was based upon
article 37.07, § 2(a), unconstitutionally shifted the burden of proof to him.
Specifically, Segovia-Amaya asserts that article 37.07, § 2(a) of the Texas Code of
Criminal Procedure is unconstitutional as applied to him, and he maintains that the
use of the statute in his case violated due process by unconstitutionally shifting the
burden of proof to him. Segovia-Amaya did not make this argument during the trial,
but he did make the argument in his motion for new trial.
An as-applied constitutional challenge must be raised in the trial court to
preserve error. Reynolds v. State, 423 S.W.3d 377, 383 (Tex. Crim. App. 2014);
Flores v. State, 245 S.W.3d 432, 437 n. 14 (Tex. Crim. App. 2008). Segovia-Amaya
failed to raise an objection at trial regarding his contention that the statute operated
unconstitutionally as applied to him. When reviewing a challenge to the
constitutionality of a statute, we presume that the statute is valid and that the
Legislature acted reasonably in enacting it. Faust v. State, 491 S.W.3d 733, 743-44
(Tex. Crim. App. 2015). The party challenging the constitutionality of a statute bears
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the burden of establishing that the statute in question is unconstitutional as applied
to him. See Schlittler v. State, 488 S.W.3d 306, 313 (Tex. Crim. App. 2016). To
resolve an as-applied challenge requires a recourse to evidence, and the party
challenging the statute must produce evidence that specifically demonstrates that the
complained-of statute is unconstitutional as applied to him. See Estes v. State, 546
S.W.3d 691, 698 (Tex. Crim. App. 2018).
As discussed in our analysis of issue two, we concluded that the trial court’s
inclusion of language from article 37.07, § 2(a) of the Texas Code of Criminal
Procedure was neither erroneous nor egregiously harmful. Segovia-Amaya failed to
lodge an “as-applied” challenge or objection at trial, and he failed to produce
evidence with his motion for new trial that specifically demonstrated that the statute
operated unconstitutionally as to him or that he was denied due process. See id.;
Faust, 492 S.W.3d at 743-44. As previously discussed, the trial court clearly and
explicitly instructed the jury regarding the State’s burden of proving the charge
beyond a reasonable doubt and the presumption of Segovia-Amaya’s innocence.
Nothing in the record before us suggests a reasonable likelihood that the jury was
confused by the complained-of instruction, and Segovia-Amaya does not point us to
any such evidence. For the same reasons explained above, we reject Segovia-
Amaya’s argument that the inclusion of the complained-of instruction denied him
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due process. We conclude that Segovia-Amaya did not meet his burden of
specifically demonstrating that article 37.07, section 2(a) of the Texas Code of
Criminal Procedure is unconstitutional as applied to him. See Estes, 546 S.W.3d at
698. Accordingly, we overrule issue three. Having overruled each of Segovia-
Amaya’s issues, we affirm the trial court’s judgment.
AFFIRMED.
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STEVE McKEITHEN
Chief Justice
Submitted on December 2, 2019
Opinion Delivered April 8, 2020
Do Not Publish
Before McKeithen, C.J., Kreger and Johnson, JJ.
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