Intelisano v. State
| Decision Date | 31 October 2019 |
| Docket Number | NO. 12-18-00274-CR,12-18-00274-CR |
| Parties | LEONARD INTELISANO, APPELLANT v. THE STATE OF TEXAS, APPELLEE |
| Court | Texas Court of Appeals |
Leonard Intelisano appeals his conviction for murder. In two issues, Appellant argues his sentence is grossly disproportionate and the trial court erred in admitting hearsay. We affirm.
On January 13, 2016, officers with the Houston County Sheriff's Department responded to a call of a possible shooting. When officers arrived on the scene, they found Frank Thomas covered in blood and lying on the pavement next to his truck. Thomas had wounds to his left torso and arm that appeared to be caused by buckshot, and he was bleeding profusely. While speaking with the responding officers, Thomas identified Appellant as his assailant. It was later learned that Thomas had been shot in his orbital socket and a bullet had lodged in the back of his skull. Thomas also had a bullet in his back. The next day, Thomas was interviewed by a Texas Ranger in the hospital. During that discussion, Thomas again identified Appellant as the man who shot him. Thomas died four days later from his injuries.
Appellant was charged by indictment with murder. Appellant pleaded "not guilty" and the matter proceeded to a jury trial. Following evidence and argument, the jury found Appellant "guilty" as charged and assessed punishment at sixty-one years imprisonment and a $10,000 fine. The trial court sentenced Appellant accordingly, and this appeal followed.
In his first issue, Appellant argues that the sixty-one-year sentence imposed by the trial court is grossly disproportionate to the crime committed and amounts to cruel and unusual punishment. "To preserve for appellate review a complaint that a sentence is grossly disproportionate, constituting cruel and unusual punishment, a defendant must present to the trial court a timely request, objection, or motion stating the specific grounds for the ruling desired." Kim v. State, 283 S.W.3d 473, 475 (Tex. App.—Fort Worth 2009, pet. ref'd); see also Rhoades v. State
, 934 S.W.2d 113, 120 (Tex. Crim. App. 1996) (); Curry v. State, 910 S.W.2d 490, 497 (Tex. Crim. App. 1995) (); Mays v. State, 285 S.W.3d 884, 889 (Tex. Crim. App. 2009) (); TEX. R. APP. P. 33.1. A review of the record shows that Appellant lodged no objection to the constitutionality of his sentence at the trial court level, and has, therefore, failed to preserve error for appellate review. See Kim, 283 S.W.3d at 475; see also Rhoades, 934 S.W.2d at 120; Curry, 910 S.W.2d at 497; Mays, 285 S.W.3d at 889; TEX. R. APP. P. 33.1.
However, despite Appellant's failure to preserve error, we conclude his sentence does not constitute cruel and unusual punishment. The Eighth Amendment to the Constitution of the United States provides that "[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." U.S. CONST. amend. VIII. This provision was made applicable to the states by the Due Process Clause of the Fourteenth Amendment. Meadoux v. State, 325 S.W.3d 189, 193 (Tex. Crim. App. 2010) (citing Robinson v. California, 370 U.S. 660, 666-67, 82 S. Ct. 1417, 1420-21, 8 L. Ed. 2d 758 (1962)). The legislature is vested with the power to define crimes and prescribe penalties. See Davis v. State
, 905 S.W.2d 655, 664 (Tex. App.—Texarkana 1995, pet. ref'd); see also Simmons v. State, 944 S.W.2d 11, 15 (Tex. App.—Tyler 1996, pet. ref'd). Courts have repeatedly held that punishment which falls within the limits prescribed by a valid statute is not excessive, cruel, or unusual. See Harris v. State, 656 S.W.2d 481, 486 (Tex. Crim. App. 1983); Jordan v. State, 495 S.W.2d 949, 952 (Tex. Crim. App. 1973); Davis, 905 S.W.2d at 664.
In this case, Appellant was convicted of murder, a first-degree felony, the punishment range for which is between five and ninety-nine years, or life, imprisonment. See TEX. PENAL CODE ANN. §§ 12.32 (West 2019), 19.02(c) (West 2019). Thus, the sentence imposed by the trial court falls within the range set forth by the legislature. Therefore, the punishment is not prohibited as cruel, unusual, or excessive per se. See Harris
, 656 S.W.2d at 486; Jordan, 495 S.W.2d at 952; Davis, 905 S.W.2d at 664.
Nevertheless, Appellant urges the court to perform the three-part test originally set forth in Solem v. Helm, 463 U.S. 277, 103 S. Ct. 3001, 77 L. Ed. 2d 637 (1983). Under this test, the proportionality of a sentence is evaluated by considering (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. Id., 463 U.S. at 292, 103 S. Ct. at 3011. The application of the Solem test has been modified by Texas courts and the Fifth Circuit Court of Appeals in light of the Supreme Court's decision in Harmelin v. Michigan, 501 U.S. 957, 111 S. Ct. 2680, 115 L. Ed. 2d 836 (1991) to require a threshold determination that the sentence is grossly disproportionate to the crime before addressing the remaining elements. See, e.g., McGruder v. Puckett
, 954 F.2d 313, 316 (5th Cir. 1992), cert. denied, 506 U.S. 849, 113 S. Ct. 146, 121 L. Ed. 2d 98 (1992); see also Jackson v. State, 989 S.W.2d 842, 845-46 (Tex. App.—Texarkana 1999, no pet.).
We are guided by the holding in Rummel v. Estelle in making the threshold determination of whether Appellant's sentence is grossly disproportionate to his crime. 445 U.S. 263, 100 S. Ct. 1133, 63 L. Ed. 2d 382 (1980). In Rummel, the Supreme Court considered the proportionality claim of an appellant who received a mandatory life sentence under a prior version of the Texas habitual offender statute for a conviction of obtaining $120.75 by false pretenses. See id.
, 445 U.S. at 266, 100 S. Ct. at 1135. In that case, the appellant received a life sentence because he had two prior felony convictions—one for fraudulent use of a credit card to obtain $80 worth of goods or services and the other for passing a forged check in the amount of $28.36. Id., 445 U.S. at 265-66, 100 S. Ct. at 1134-35. After recognizing the legislative prerogative to classify offenses as felonies and, further, considering the purpose of the habitual offender statute, the court determined that the appellant's mandatory life sentence did not constitute cruel and unusual punishment. Id., 445 U.S. at 284-85, 100 S. Ct. at 1144-45.
In this case, the offense committed by Appellant—murder—is considerably more serious than the combination of offenses committed by the appellant in Rummel, while Appellant's sixty-one-year sentence is less severe than the life sentence upheld by the Supreme Court in Rummell. Thus, it is reasonable to conclude that if the sentence in Rummell is not constitutionally disproportionate, neither is the sentence assessed against Appellant in this case. In his brief, Appellant makes a conclusory statement that his sixty-one-year sentence is grossly disproportionate, stating that "other much more serious crimes the defendant was convicted of resulted in significantly less harsh sentences than Appellant received." However, he cites to no authority to support this contention. See TEX. R. APP. P. 38.1(i) (). Because we do not conclude that Appellant's sentence is disproportionate to his crime, we need not apply the remaining elements of the Solem test. Appellant's first issue is overruled.
In his second issue, Appellant argues that the trial court abused its discretion in permitting the officers to testify about Thomas's statements regarding the identity of his assailant because his statements constitute inadmissible hearsay.
We review a trial court's decision to admit evidence under an abuse of discretion standard. Apolinar v. State, 155 S.W.3d 184, 186 (Tex. Crim. App. 2005). A trial court abuses its discretion only when the decision lies "outside the zone of reasonable disagreement." Id.
Hearsay statements generally are not admissible unless the statement falls within a recognized exception to the hearsay rule. Mick v. State, 256 S.W.3d 828, 831 (Tex. App.-Texarkana 2008, no pet.). If the declarant is unavailable as a witness, his hearsay statement is admissible if it constitutes a dying declaration. See TEX. R. EVID. 804(b)(2). Before a statement is admissible as a dying declaration, it must meet the following three requirements: (1) the declarant must be unavailable; (2) the declarant, at the time he makes the statement, must believe his death is imminent; and (3) the statement must concern the cause or circumstances of the potential impending death. Scott v. State, 894 S.W.2d 810, 811 (Tex. App.-Tyler 1994, pet. ref'd); see TEX. R. EVID. 804(b)(2); Williams v. State, 800 S.W.2d 364, 368 (Tex. App.-Fort Worth 1990), pet. ref'd, 805 S.W.2d 474 (Tex. Crim. App. 1991).
Contemplation of death may be inferred from surrounding circumstances; it is not necessary that the declarant specifically express his awareness of impending death. Scott, 894 S.W.2d at 812 (...
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