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Reyes v. State

Court of Appeals of Texas, Eighth District, El Paso

March 29, 2017


         Appeal from 204th District Court of Dallas County, Texas (TC#F-1500065-Q)

          Before McClure, C. J., Rodriguez, and Hughes, JJ.


          ANN CRAWFORD McCLURE, Chief Justice

         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: "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 weapon.
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 COURT: Knowing that, would you like to continue with this open plea today?

         The 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.

         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. 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).

         "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)(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.").

         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)("[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. 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, 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 pet.).[3]

         But 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.

         Several 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 jurisdictions. Id.

         Following 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 (Tex.App.-Amarillo ...

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