Frazier v. State
| Docket Number | 08-23-00097-CR |
| Decision Date | 07 November 2023 |
| Parties | AARON JOE FRAZIER, JR., Appellant, v. THE STATE OF TEXAS, Appellee. |
| Court | Texas Court of Appeals |
Do Not Publish
Appeal from the 42nd Judicial District Court of Taylor County, Texas (TC# 28467-A)
Before Palafox, J., Soto, J., and Marion, C.J. (Ret.) Marion, C.J. (Ret.) (Sitting by Assignment)
A jury found appellant, Aaron Joe Frazier, Jr., guilty of continuous sexual abuse of two children (E.F. and G.F.) and indecency by contact with a third child (B.F.).[2] The trial court assessed punishment at fifty years' confinement and fifteen years' confinement, respectively, with the sentences to run concurrently. In two issues, appellant asserts the Texas Rape Shield Law is unconstitutional as applied to him and his fifty-year sentence is grossly disproportionate to the severity of his crimes. We conclude appellant did not preserve his constitutional challenge to the Rape Shield Law and his sentence did not violate his constitutional rights. Therefore, we affirm.[3]
Prior to trial the State filed a motion in limine [4] regarding, among other things, the following:
During the guilt-innocence phase of trial, several witnesses including B.F., G.F., and E.F., testified. The jury found appellant guilty on both counts. Before the trial court assessed punishment, appellant raised two arguments. First, he contended the Rape Shield Law was a violation of his constitutional rights because it prevented him from presenting evidence that B.F. and G.F. had made prior sexual assault allegations against other individuals. Second, he contended the mandatory sentence for continuous sexual assault violated his constitutional right against cruel and usual punishment. No testimony was adduced during the sentencing phase, and, after hearing arguments, the trial court assessed punishment. This appeal raising two constitutional complaints ensued.
Texas Rule of Evidence 412, otherwise known as the Rape Shield Law, provides in relevant part as follows:
In his first issue, appellant asserts the Rape Shield Law is unconstitutional as applied to him. Appellant does not take issue with the law's preclusion of evidence of "a victim's past sexual behavior." Instead, he contends the law should not prevent the admission into evidence of any prior allegations made by a sexual assault complainant against individuals other than the defendant and the trial court should "never have discretion" on whether such allegations should be admissible. On appeal, he asserts application of the law violated his rights to due process, confrontation and cross-examination of the witnesses against him, and preparation of a valid defense. The State argues appellant failed to preserve error. Therefore, before we consider the merits of appellant's arguments, we must first address whether this issue was preserved for appellate review.
Almost every right, constitutional and statutory, may be waived by failing to object. Smith v. State, 721 S.W.2d 844, 855 (Tex. Crim. App. 1986). "While no 'hyper-technical or formalistic use of words or phrases' is required in order to preserve error, the proffering party must 'let the trial judge know what he wants, why he thinks he is entitled to it, and to do so clearly enough for the judge to understand him at a time when the judge is in the proper position to do something about it.'" Golliday v. State, 560 S.W.3d 664, 670 (Tex. Crim. App. 2018) (citations omitted). In this case, several rules of preservation are at play.
First, an objection must be timely presented to the trial court. King v. State, 953 S.W.2d 266, 268 (Tex. Crim. App. 1997); Tex.R.App.P. 33.1(a)(1). Here, appellant raised his complaint to the trial court after the jury found him guilty. He did not raise the complaint during the testimony of either B.F. or G.F. Therefore, his complaint was not timely.
Second, to preserve error in the exclusion of evidence, the proponent must make an offer of proof and obtain a ruling. "A party may claim error in a ruling to . . . exclude evidence only if the error affects a substantial right of the party and . . . if the ruling excludes evidence, a party informs the court of its substance by an offer of proof, unless the substance was apparent from the context." Tex. R. Evid. 103(a)(2). The offer of proof may be in question-and-answer form or may consist of a concise statement by counsel. Mays v. State, 285 S.W.3d 884, 889 (Tex. Crim. App. 2009). When in the form of a statement, the offer of proof "must include a reasonably specific summary of the evidence offered and must state the relevance of the evidence unless the relevance is apparent, so that the court can determine whether the evidence is relevant and admissible." Id. at 889-90 (quoting Warner v. State, 969 S.W.2d 1, 2 (Tex. Crim. App. 1998) (per curiam)); see also Reyna v. State, 168 S.W.3d 173, 177 (Tex. Crim. App. 2005) ( ).
Appellant did not state the relevance of the evidence, nor did he tell the court why it should be admissible. Also, because the issue was not raised until after the close of the guilt-innocence phase and the jury had found him guilty, the trial court was not asked for and did not make a ruling.[5]
Finally, a criminal defendant must clearly articulate to the trial court the constitutional basis supporting the admission of excluded evidence to preserve a constitutional claim for appeal. Golliday, 560 S.W.3d at 670-71; Tex.R.App.P. 33.1(a)(1)(A). Appellant informed the trial court that "had the Rape Shield Law, which my client finds to be an unconstitutional violation of his constitutional rights, not existed, then he would have offered proof of" the prior sexual assault allegations. Appellant did not articulate the basis of his constitutional challenge as a violation of his rights to due process, confrontation and cross-examination of the witnesses against him, or preparation of a valid defense.
For the above reasons, we conclude appellant did not preserve his constitutional challenge to the Rape Shield Law. Therefore, we overrule his first issue on appeal.
In his second issue, appellant asserts his "sentence of fifty flat years" is disproportionate to the severity of his crime. More specifically, he contends this sentence, at his age, amounts to a death sentence.[6] As a general rule, "a sentence within the statutory range of punishment does not constitute cruel and unusual punishment and is not excessive." Burton v. State, 830 S.W.2d 197, 199 (Tex. App.-El Paso 1992, no pet.); see also State v. Simpson, 488 S.W.3d 318, 323 (Tex. Crim. App. 2016) (). Appellant's conviction for continuous sexual assault arises under Texas Penal Code § 21.02. Tex. Pen. Code Ann. § 21.02(b). "An offense under this section is a felony of the first degree, punishable by imprisonment in the Texas Department of Criminal Justice for life, or for any term of not more than 99 years or less than 25 years." Id. § 21.02(h). An inmate who is serving a sentence for an offense under § 21.02 is not eligible for release on parole. Tex. Gov't Code Ann. § 508.145(a). Therefore, appellant's fifty-year sentence for continuous sexual assault is within the statutory range of punishment.
A narrow exception to the general rule is recognized when the sentence is grossly disproportionate to the offense. Simpson, 488 S.W.3d at 322 (). The United States and Texas Constitutions prohibit cruel and unusual punishment. U.S. Const. amend. VIII; Tex. Const. art. I § 13. Generally, these provisions require a punishment to be proportional to the crime committed. Solem v. Helm, 463 U.S. 277, 290 (1983). A punishment will be grossly disproportionate only in "exceedingly rare" or "extreme" cases. Simpson, 488 S.W.3d at 322-23.
Although appellant acknowledges...
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