Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Alvarez v. State

Court of Appeals of Texas, Eleventh District

July 27, 2017

JOE ANTHONY ALVAREZ, Appellant
v.
THE STATE OF TEXAS, Appellee

         On Appeal from the 104th District Court Taylor County, Texas Trial Court Cause No. 19636B

          Panel consists Wright, C.J., Willson, J., and Bailey, J.

          OPINION

          MIKE WILLSON JUSTICE.

         Joe Anthony Alvarez pleaded guilty to the first-degree felony offense of possession of a controlled substance, methamphetamine, with intent to deliver.[1] The trial court assessed punishment at confinement for forty years and sentenced him. In a single issue on appeal, Appellant asserts that the trial court violated his Eighth Amendment right to be free of cruel and unusual punishment. We affirm.

         I. Background Facts

         Appellant entered into a "charge bargain" at trial where he pleaded guilty in return for three other charges being dismissed once he was sentenced in this cause. The trial court ordered a presentence investigation report and conducted a disposition hearing. At the disposition hearing, the trial court heard evidence about the three cases concurrently charged against him, which included forgery, assault family violence, and the burglary of a home where the owner and her small child were present.

         Appellant admitted he was on methamphetamine the day law enforcement arrested him for possession with intent to sell methamphetamine, as well as during past incidents with police. During a routine traffic stop, a law enforcement K-9 unit discovered methamphetamine in Appellant's glove compartment. Officers also discovered three cell phones and a number of small square baggies in the vehicle. The trial court heard testimony about Appellant's criminal history, including (1) possession of marihuana, (2) a disorderly conduct charge, and (3) a prohibited weapons charge. Appellant had a past revocation of probation due to a positive urinalysis test for methamphetamine, cocaine, and amphetamines and his failure to report. Having considered all the evidence, the trial court assessed a sentence of confinement for forty years.

         II. Standard of Review

         When we review a trial court's sentencing determination, "a great deal of discretion is allowed the sentencing judge." Jackson v. State, 680 S.W.2d 809, 814 (Tex. Crim. App. 1984). We will not disturb a trial court's decision as to punishment absent a showing of abuse of discretion and harm. Id. When a sentence falls within the statutory range of punishment, it is generally not "excessive, cruel, or unusual." State v. Simpson, 488 S.W.3d 318, 323 (Tex. Crim. App. 2016). The statutory range of punishment for a first-degree felony is confinement for not more than ninety-nine years or less than five years, or life.[2] The trial court may also assess a fine of up to $10, 000.[3]

         We note that a very narrow exception exists and that an individual's sentence may constitute cruel and unusual punishment, despite falling within the statutory range, if it is grossly disproportionate to the offense. Solem v. Helm, 463 U.S. 277, 287 (1983). The Eighth Amendment prohibits grossly disproportionate sentences for an offense. Bradfield v. State, 42 S.W.3d 350, 353 (Tex. App.-Eastland 2001, pet. ref'd) (citing Harmelin v. Michigan, 501 U.S. 957 (1991)). However, "[o]utside the context of capital punishment, successful challenges to the proportionality of particular sentences [will be] exceedingly rare." Solem, 463 U.S. at 289-90 (alterations in original) (quoting Rummel v. Estelle, 445 U.S. 263, 272 (1980)).

         III. Analysis

         On appeal, Appellant asserts that the trial court violated his right to be free from cruel and unusual punishment, as defined by the Eighth Amendment of the United States Constitution.[4] He argues that the trial court violated evolving standards of decency when it sentenced him to confinement for forty years. Appellant contends that, especially in light of the State's failure to prove he caused physical injury to anyone, the offense, coupled with Appellant's other acts, did not warrant that sentence. In response, the State asserts that Appellant's sentence was not cruel or unusual because of his offending history and because the range of punishment for a first-degree felony is imprisonment for five to ninety-nine years or life.[5]

         We note at the outset that Appellant made no objection to his sentence in the trial court, either at the time of disposition or in any posttrial motion. Appellant did not lodge an objection, under constitutional or other grounds, to the alleged disparity, cruelty, unusualness, or excessiveness of the sentence. To preserve an error for appellate review, a party must present a timely objection to the trial court, state the specific grounds for the objection, and obtain a ruling. Tex.R.App.P. 33.1(a). Therefore, Appellant has failed to preserve error and has waived his complaint on appeal. See id.; Curry v. State, 910 S.W.2d 490, 497 (Tex. Crim. App. 1995) (Eighth Amendment issues are forfeited if not raised in the trial court.); Solis v. State, 945 S.W.2d 300, 301 (Tex. App.-Houston [1st Dist.] 1997, pet. ref'd) (holding that a claim of grossly disproportionate sentence in violation of Eighth Amendment was forfeited by failure to object).

         But even if we are incorrect on the issue of forfeiture, Appellant's claim of cruel and unusual punishment still fails because his sentence was not cruel or unusual. In this case, the trial court assessed a sentence that was within the statutory range. Nonetheless, if the sentence is grossly disproportionate to the offense or sentences in other similar offenses, the sentence may violate the Eighth Amendment. See Bradfield, 42 S.W.3d at 353. To evaluate the proportionality of a sentence, the first step is for us to make a threshold comparison between the gravity of the offense and the severity of the sentence. Id. When we analyze the gravity of the offense, we examine the harm caused or threatened to the victim or society and the culpability of the offender. See, e.g., Hooper v. State, No. 11-10-00284-CR, 2011 WL 3855190, at *3 (Tex. App.-Eastland Aug. 31, 2011, pet. ref'd) (mem. op., not designated for publication) (citing Solem, 463 U.S. at 291-92). We also consider the sentence imposed in light of the offender's prior adjudicated and unadjudicated offenses. Culton v. State, 95 S.W.3d 401, 403 (Tex. App.-Houston [1st Dist.] 2002, pet. ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.