United States District Court, E.D. Texas, Tyler Division
ORDER OF DISMISSAL
CLARK, UNITED STATES DISTRICT JUDGE.
Shaun Mark Lawler, an inmate confined in the Texas prison
system, filed the above-styled and numbered petition for a
writ of habeas corpus challenging his Smith County conviction
for aggravated assault with a deadly weapon, in violation of
the state laws of Texas. Mr. Lawler entered an open plea of
guilty, was found guilty, and was sentenced to fifty-five
years in prison.
federal petition was referred to United States Magistrate
Judge John D. Love, who issued a Report and Recommendation on
June 14 2017, concluding that the petition for a writ of
habeas corpus should be dismissed with prejudice. (Dkt. #14).
Petitioner filed objections to the Report and Recommendation.
objections to a magistrate judge's report are filed, the
district court reviews the recommendation de novo
pursuant to Federal Rule of Civil Procedure 72. See
also 28 U.S.C § 636(b) (1) (“A judge of the
court shall make a de novo determination of those
portions of the report or specified proposed findings and
recommendations to which objection is made.”). During a
de novo review a court examines the entire record
and makes an independent assessment of the law. The court
should not conduct a de novo review when the
objections are frivolous, conclusive, or too general. 1
See Battle v. United States Parole Commission, 834
F.2d 419, 421 (5th Cir.1987).
objection, Mr. Lawler repeats his argument that his guilty
plea was not voluntary because he was not informed that he
could present a constitutional challenge to the statutory
punishment for aggravated assault. Mr. Lawler again urges
this Court to find that his trial counsel was
constitutionally ineffective because counsel failed to advise
him that he could challenge the facial constitutionality of
the statutory punishment scheme for aggravated assault-family
violence. Mr. Lawler contends that the First Degree Felony
offense of aggravated assault-family violence, with which he
was charged, carries a stiffer punishment than a homicide
charge that is subsequently mitigated during the punishment
phase by evidence of sudden passion. Compare Tex.
Penal Code Ann. § 22.02 (b) (1)(Vernon 2011) to Tex.
Penal Code Ann. § 19, 02 (d) (Vernon 2011). Mr. Lawler
asserts that trial counsel had a duty to explain to him that
the first degree punishment range applicable to this case was
greater than that which would have applied if he had killed
his victim. His claim is based upon the argument that it is
unconstitutional for the mitigated punishment range in a
homicide case to be less than for an aggravated assault that
involves the use of a deadly weapon in causing a serious
bodily injury against a family member as described by the
support of his allegation in his state writ, Mr. Lawler,
through counsel Randy Schaffer, submitted an affidavit from
his trial attorney, Jeff Haas, stating that:
Aggravated assault ordinarily is a second degree felony.
However, it is a first degree felony if the actor uses a
deadly weapon and causes serious bodily injury to a person
with whom he is in a household or dating relationship. Thus,
the maximum punishment for causing serious bodily injury to a
girlfriend with a deadly weapon (life) is substantially
greater than the maximum punishment for killing her under the
immediate influence of sudden passion arising from an
adequate cause (20 years). I did not discuss with Lawler that
he could file a motion contending that the statutory
punishment scheme for aggravated assault-family violence is
facially unconstitutional because it subjects persons to
greater punishment for causing serious bodily injury to a
spouse or girlfriend with a deadly weapon than for killing
her in the heat of passion.
SHCR-01 (“Writ Received”), at 52-53 (Affidavit of
claim, that it is unconstitutional for the mitigated
punishment range in a homicide case to be less than for an
aggravated assault that involves the use of a deadly weapon
in causing a serious bodily injury against a family member as
described by the Penal Code, is not supported by Texas
jurisprudence. Mr. Lawler fails to cite or discuss Texas law
or the specific Texas statutes that he has attacked in his
federal petition and objections. These cases do not stand for
his proposition that the sentencing ranges for Penal Code
§ 22.02 (b) (1) and Penal Code § 19.02 (d) are
unconstitutional because the Texas Legislature decided that
the sentence for a homicide conviction may be mitigated by
proof of a defendant's sudden passion.
Court of Criminal Appeals held that a defendant may not raise
for the first time on appeal a facial challenge to the
constitutionality of a statute. See Karenev v.
State, 261 S.W.3d 428, 434 (Tex. Crim. App. 2009)(a
facial challenge to the constitutionality of statute falls
within the category of rights that can be forfeited). In so
holding, the Court explained that statutes are presumed to be
constitutional until it is determined otherwise and
“[t]he State and the trial court should not be required
to anticipate that a statute may later be held to be
unconstitutional.” Id. When the
constitutionality of a statute is at issue, we presume the
statute is valid and that the legislature did not act
unreasonably or arbitrarily in enacting the statute.
Weyandt v. State, 35 S.W.3d 144, 155 (Tex.
App.-Houston [14th Dist.] 2000, no pet.). The burden rests on
the moving party to establish its unconstitutionality.
Id. Courts will uphold the statute if a reasonable
construction of it can be determined which will render it
constitutional and carry out the legislative intent.
Weyandt, 35 S.W.3d at 155.
case law has long provided 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). Texas courts
consistently deny claims questioning the constitutional
validity of statutorily sanctioned punishment. See,
e.g., Harris v. State, 656 S.W.2d 481, 486 (Tex.
Crim. App. 1983); Rodriguez v. State, 614 S.W, 2d
448, 450 (Tex. Crim. App. 1981); Hypke v. State, 720
S.W, 2d 158, 160 (Tex. App. - Houston [14th Dist] 1986, pet.
reaffirms the reasoning in Rummel v. Estelle, 445
U.S. 263, 272 (1980) that Texas courts must defer to the
Legislature in determining appropriate sentencing for various
crimes. Hypke, 720 S.W.2d at 160. In
Rummel, the U.S. Supreme Court noted that it is
extremely rare for petitioners to have a cruel and unusual
punishment argument sustained in any context outside that of
capital punishment because of the great deference allowed
state legislatures in determining sentencing.
Rummel, 445 U.S. at 272.
Supreme Court again explicitly reaffirmed this perspective in
Solem v. Helm, 463 U.S. 277 (1983), where it stated
In view of the substantial deference that must be accorded
legislatures and sentencing courts, a reviewing court rarely
will be required to engage in extended analysis to determine
that a ...