Reyes v. State
| Decision Date | 29 March 2017 |
| Docket Number | No. 08–15–00311–CR,08–15–00311–CR |
| Parties | Arnaldo REYES, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Appeals |
Larissa T. Roeder, Susan Hawk, for The State of Texas.
Michael R. Casillas, for Arnaldo Reyes.
Before McClure, C.J., Rodriguez, and Hughes, JJ.
This is an appeal from a guilty plea where there was no plea bargain, but only a recommendation from the State's attorney. The trial court accepted the guilty plea, and after hearing testimony about the crime, assessed a sentence well in excess of the recommendation. Appellant challenges that sentence as excessive, and through his appellate attorney, contends his trial attorney provided constitutionally ineffective assistance of a counsel. We affirm.
Appellant was originally indicted for aggravated assault on a family member with a deadly weapon. The indictment alleged that Appellant caused serious bodily injury to Rene Caso. Testimony would later reveal that Caso lost his right eye as a result of the assault. The original indictment identified the deadly weapon as either a vase, a tissue box, or Appellant's hand. The State later struck the deadly weapon language from the indictment. But the State also enhanced the punishment range by claiming that Appellant had previously been convicted of another felony offense some seven years before the date of the aggravated assault.
On July 20, 2015, Appellant entered a non-negotiated guilty plea and pled true to the enhancement allegation. While there was no formal plea bargain in this case, the State's attorney had apparently made a recommendation to the court that Appellant should be sentenced to fourteen years.1 The plea paperwork admonished Appellant that the punishment range for the crime was five to ninety-nine years or a life sentence, and a fine not to exceed $10,000.00. Appellant was also warned in writing that the trial court could assess punishment anywhere within the range allowed by law. The court accepted the plea and set the matter for a sentencing hearing which was held on August 13, 2015.
At the sentencing hearing, the trial court orally admonished Appellant that the possible range of punishment was from five to ninety-nine years or life imprisonment along with the fine. Appellant said he understood, but when first asked if he wished to continue with his open plea, he stated: The trial court then went off the record, which was then followed by this exchange:
The court then heard testimony from Rene Caso (the victim), Claudia Rodas (the fiancé of Mr. Caso), and Julia Castellanos (Rene Caso's mother). The trial court also took testimony from Appellant. After argument of counsel, the trial court assessed a forty year prison sentence and a $5,000.00 fine.
Appellant's retained trial counsel filed a notice of appeal, but no other post-conviction pleadings. Counsel moved to withdraw on the last business day before a motion for new trial was due to be filed.2 The motion to withdraw claimed that trial counsel had no experience in criminal appellate matters, and that because of Appellant's indigent status, he was entitled to court appointed appellate counsel. The trial court appointed Appellant's present appellate counsel on September 15, 2015, one day after any motion for new trial was due.
Appellant raises three issues for our consideration. In his first issue, he contends that the forty year sentence is grossly disproportionate to the offense committed, and as such is cruel and unusual under the federal constitution. The State responds to this claim on the merits, and additionally contends that the argument is forfeited as it was not raised below. In his second issue, Appellant argues that his trial counsel provided ineffective assistance in five specific ways which we detail below. In his third issue, Appellant contends that he was denied his constitutional right to counsel during a critical stage of the proceedings because his trial counsel moved to withdraw just before a motion for a new trial was due to be filed.
Appellant's first issue complains that the forty year sentence is grossly disproportionate to the offense. In somewhat differing verbiage, both the United States and Texas Constitutions prohibit cruel and/or unusual punishment. The federal constitution prohibits "cruel and unusual punishment" while the Texas constitution prohibits "cruel or unusual punishment." Cf. U.S. Const. amend. VIIIwith Tex. Const. art I, § 13. There is no significant difference, however, in the protections afforded by either constitutional protection. See Cantu v. State , 939 S.W.2d 627, 645 (Tex.Crim.App. 1997) ; Duran v. State , 363 S.W.3d 719, 723 (Tex.App.–Houston [1st Dist.] 2011, pet. ref'd).
"The concept of proportionality is central to the Eighth Amendment." Graham v. Florida , 560 U.S. 48, 59, 130 S.Ct. 2011, 2021, 176 L.Ed.2d 825 (2010). Embodied in the Constitution's ban on cruel and unusual punishments is the "precept of justice that punishment for crime should be graduated and proportioned to [the] offense." Weems v. United States, 217 U.S. 349, 367, 30 S.Ct. 544, 549, 54 L.Ed. 793 (1910) (). But when a punishment falls within a legislatively prescribed range, the judge or jury's selection of a particular sentence is generally unassailable, subject only to "exceedingly rare" circumstances when the sentence is grossly disproportional. Barrow v. State , 207 S.W.3d 377, 381 (Tex.Crim.App. 2006). And there is no doubt here that the forty year sentence fell within the punishment range for this crime. Tex.Penal Code Ann. § 22.02(b) (West 2011)(aggravated assault is generally a second degree felony); Tex.Penal Code Ann. § 12.42(b) (West Supp. 2016)(second degree felony punished as first degree felony when defendant has prior felony conviction); Id. at § 12.32(a)(West 2011) ().
As the State points out, Appellant did not object that the sentence was constitutionally disproportional. A party must preserve error, even many constitutional errors, with a proper objection. Clark v. State , 365 S.W.3d 333, 339 (Tex.Crim.App. 2012) ; Fuller v. State , 253 S.W.3d 220, 232 (Tex.Crim.App 2008) (); Tex.R.App.P. 33.1(a)(1)(A). A defendant's rights fall into one of three categories: absolute rights (which cannot be forfeited by inaction); non-forfeitable rights (which can be waived but only by plainly, freely, and intelligently made action); and forfeitable rights (which must be requested and otherwise preserved). Garza v. State , 435 S.W.3d 258, 262–63 (Tex.Crim.App. 2014), citing Marin v. State , 851 S.W.2d 275 (Tex.Crim.App. 1993), overruled on other grounds by Cain v. State, 947 S.W.2d 262 (Tex.Crim.App. 1997).
In Garza, for instance, a juvenile defendant was sentenced to life without the possibility of parole for a murder that he committed. 435 S.W.3d at 259. The United States Supreme Court, however, had held that such sentences for juveniles violate the Eighth Amendment. Miller v. Alabama , 567 U.S. 460, 132 S.Ct. 2455, 2464, 183 L.Ed.2d 407 (2012). Garza did not raise the Miller argument at trial, and the court of appeals held that he waived it. 435 S.W.3d at 260. The Court of Criminal Appeals, however, held that "substantive status-based or individualized-sentencing claims under the Eighth Amendment and embraced by Miller are not forfeited by inaction." Id. at 262–63.
Appellant, however, is not arguing that a categorical rule such as that articulated in Miller directly controls the outcome of this case. Instead, he argues that the trial court erred in assessing too great a sentence within the parameters of what the Legislature allows for this crime. Disproportionality is a matter that must be raised to the trial court, else it is forfeited on appeal. See Harrington v. State , 08–13–00224–CR, 2014 WL 3783960, at *2 (Tex.App.–El Paso July 31, 2014, no pet.) (not designated for publication); Jackson v. State , 989 S.W.2d 842, 844 (Tex.App.–Texarkana 1999, no pet.) ; Keith v. State , 975 S.W.2d 433, 433–34 (Tex.App.–Beaumont 1998, no pet.) ; Solis v. State , 945 S.W.2d 300, 301 (Tex.App.–Houston [1st Dist.] 1997, pet. ref'd) ; Rodriguez v. State , 917 S.W.2d 90, 92 (Tex.App.–Amarillo 1996, pet. ref'd) ; Cruz v. State , 838 S.W.2d 682, 687 (Tex.App.–Houston [14th Dist.] 1992, pet. ref'd) ; Quintana v. State , 777 S.W.2d 474, 479 (Tex.App.–Corpus Christi 1989, pet. ref'd). The Dallas Court of Appeals has similarly found a forfeiture when no objection was lodged to a purportedly disproportionate sentence. Bell v. State , 326 S.W.3d 716, 724 () ; Castaneda v. State, 135 S.W.3d 719, 723 (Tex.App.–Dallas 2003, no pet.).3
But even if we were to reach the merits, we would overrule...
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