Court of Appeals of Texas, Eighth District, El Paso
from 204th District Court of Dallas County, Texas
McClure, C. J., Rodriguez, and Hughes, JJ.
CRAWFORD McCLURE, Chief Justice
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.
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.
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. 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,
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: "I
would then - I would then have to go to trial because I did
not declare myself guilty to something like that. I think
I'd rather go to trial." The trial court then went
off the record, which was then followed by this exchange:
THE COURT: Back on the record. Mr. Reyes, we have been off
the record, and the Court has attempted to explain to you
what an aggravated assault is, that if there is an allegation
of serious bodily injury, that makes the assault aggravated.
Now, the State has stricken the language concerning a deadly
THE DEFENDANT: Yes.
THE COURT: But because you have a prior felony conviction,
that elevates your offense to a first-degree punishment range
of from 5 years to 99 years or life imprisonment.
THE DEFENDANT: Yes.
THE COURT: Knowing that, would you like to continue with this
open plea today?
THE DEFENDANT: Okay. Yes.
court then heard testimony from Rene Caso (the victim),
Claudia Rodas (the fiance 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.
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. 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
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.
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. VIII with 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 [lstDist] 2011, pet. refd).
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)(sentence of 15 years to hard
and "painful" labor for submitting false invoice
held cruel and unusual). 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)
("An individual adjudged guilty of a felony of the first
degree shall be punished by imprisonment in the Texas
Department of Criminal Justice for life or for any term of
not more than 99 years or less than 5 years.").
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)("[A]lmost all error-even
constitutional error-may be forfeited if the appellant failed
to object"); 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);
nonforfeitable 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.
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.
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, 111 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 (Tex.App.- Dallas
2010, pet. dism'd as untimely); Castaneda v.
State, 135 S.W.3d 719, 723 (Tex.App.-Dallas 2003, no
even if we were to reach the merits, we would overrule the
issue based on the record here. The test for
disproportionality is gleaned from two United States Supreme
Court cases. The first is Solem v. Helm, 463 U.S.
277, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983), a case involving
a life sentence assessed against a defendant convicted of
passing a worthless $100 check. The defendant had several
other prior convictions for non-violent offenses.
Id. at 296-297, 303, 103 S.Ct. at 3013, 3016. The
court held the sentence too harsh, relying on a three factor
test looking to: (1) the gravity of the offense relative to
the harshness of the penalty, (2) the sentences imposed for
other crimes in the jurisdiction, and (3) the sentences
imposed for the same crime in other jurisdictions.
Id. at 292, 103 S.Ct. at 3010.
years later in Harmelin v. Michigan, 501 U.S. 957,
111 S.Ct. 2680, 115 L.Ed.2d 836 (1991), the court upheld a
life without parole sentence for possession of a large
quantity of cocaine. The court was sharply divided and
Justice Kennedy's concurring opinion controlled the
outcome That concurrence utilizes Solem's three factors,
but establishes that the first factor-comparing the gravity
of the offense and the severity of the sentence-is a gateway
through which the defendant must first pass before even
getting to the later factors 501 U.S. at 1005, 111 S.Ct. at
2707 (Kennedy, J, concurring). "[I]n the rare case in
which [this] threshold comparison . . . leads to an inference
of gross disproportionality" the court should then
compare the defendant's sentence with the sentences
received by other offenders in the same jurisdiction and with
the sentences imposed for the same crime in other
Harmelin, the Fifth Circuit Court of Appeals adopted
Justice Kennedy's modified Solem test.
McGruder v. Puckett,954 F.2d 313, 316 (5th Cir.),
cert, denied,506 U.S. 849, 113 S.Ct. 146, 121
L.Ed.2d 98 (1992). This modified Solem test has been
applied by several of our sister courts of appeals and more
recently by the Texas Court of Criminal Appeals. State v.
Simpson,488 S.W.3d 318, 323 (Tex.Crim.App. 2016);
Oglesby v. State, 07-15-00002-CR, 2015 WL 5302466,
at *2-4 (Tex.App.-Amarillo Sept. 10, 2015, no pet.)(not
designated for publication); Valdez v. State,
10-12-00410-CR, 2014 WL 505306, at *4 (Tex.App.-Waco Feb. 6,
2014, pet. ref d)(mem. op.)(not designated for publication);
Winchester v. State,246 S.W.3d 386, 389