ALBERT GUTIERREZ v. THE STATE OF TEXAS--Appeal from 156th District Court of Bee County

NUMBER 13-04-051-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

ALBERT GUTIERREZ, Appellant,

v.

THE STATE OF TEXAS, Appellee.

On appeal from the 156th District Court

of Bee County, Texas.

  MEMORANDUM OPINION[1]

Before Justices Rodriguez, Castillo, and Garza

Memorandum Opinion by Justice Castillo

Appellant Albert Gutierrez appeals the sentence[2] the trial court assessed after adjudicating guilt for the offense of indecency with a child.[3] The trial court sentenced him to an eight-year term in the Texas Department of Criminal Justice-Institutional Division. By one issue, Gutierrez asserts his sentence is "cruel and unusual" in that it is disproportionate to the severity of the crime for which he was convicted. We affirm.

I. Background

Gutierrez pleaded guilty to the charged offense pursuant to a plea agreement.[4] The trial court deferred a finding of guilt and placed Gutierrez on community supervision for a term of eight years. During the term of this deferred adjudication probation, the State filed a motion to revoke community supervision and adjudicate guilt on grounds that Gutierrez failed to (1) report to his probation officer, (2) attend a sex offender treatment program, (3) remain 1000 feet away from any place where children gather, and (4) pay a supervisory fee. As a result of the State's motion and Gutierrez's plea of true to the allegations, the trial court adjudicated Gutierrez guilty. After argument, the trial court sentenced Gutierrez to the eight-year penitentiary term. This appeal ensued.

II. Cruel and Unusual Punishment

A. Forfeiture of Complaint

Gutierrez was required to raise any complaints involving the original plea proceeding, in which the trial court imposed deferred adjudication probation, through an appeal taken at the time. See Tex. Code Crim. Proc. Ann. art. 44.01(j) (Vernon Supp. 2004-05); see also Nix v. State, 65 S.W.3d 664, 667 (Tex. Crim. App. 2001) (en banc); Manuel v. State, 994 S.W.2d 658, 661-62 (Tex. Crim. App. 1999). He did not do so. Further, no appeal lies from the trial court's decision to adjudicate Gutierrez's guilt. See Tex. Code Crim. Proc. Ann. art. 42.12, ' 5(b) (Vernon Supp. 2004-05); see also Connolly v. State, 983 S.W.2d 738, 741 (Tex. Crim. App. 1999) (holding that an appellant whose deferred adjudication has been revoked and who has been adjudicated guilty "may not raise on appeal contentions of error in the adjudication of guilt process," not just in the decision to adjudicate) (emphasis added).[5] Gutierrez also could have appealed, at the time, the trial court's imposition of regular community supervision, but he did not do so. See Corley v. State, 782 S.W.2d 859, 860 (Tex. Crim. App. 1989) (en banc). While the challenge to the trial court's decision to adjudicate is unreviewable under the bar of article 42.12, section 5b, we may consider the challenge to the trial court's actions after a finding of guilt. Tex. Code Crim. Proc. Ann. art. 42.12 ' 5b (Vernon Supp. 2004-05) ("[a]fter an adjudication of guilt, all proceedings, including assessment of punishment, pronouncement of sentence, granting of community supervision, and defendant's appeal continue as if the adjudication of guilt had not been deferred."); Issa v. State, 826 S.W.2d 159, 161 (Tex. Crim. App. 1992) (en banc) (holding a defendant does have a limited right to challenge errors made following a determination to adjudicate). Gutierrez argues that application of the test in Solem v. Holm, 463 U.S. 277, 290-91 (1983) shows that the sentence is disproportionate to the offense.

Gutierrez made no objection to his sentence to the trial court, either at the time of sentencing or in any post-trial motion, on any grounds, nor did he ever lodge an objection, under constitutional or other grounds, to the alleged disparity, cruelty, unusualness or excessiveness of the sentences.[6] Even constitutional claims can be waived by failure to object. Smith v. State, 721 S.W.2d 844, 855 (Tex. Crim. App. 1986). 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). Generally, an appellant may not complain of an error pertaining to his sentence or punishment if he has failed to object or otherwise raise error in the trial court. Mercado v. State, 718 S.W.2d 291, 296 (Tex. Crim. App. 1986) (en banc); see Solis v. State, 945 S.W.2d 300, 301 (Tex. App.BHouston [1st Dist.] 1997, pet. ref=d) (holding that claim of grossly disproportionate sentence violative of Eighth Amendment forfeited by failure to object); Quintana v. State, 777 S.W.2d 474, 479 (Tex. App.BCorpus Christi 1989, pet. ref=d) (en banc) (holding that failure to object to sentence as cruel and unusual forfeits error). In the present case, by failing to object to the trial court's sentence below, Gutierrez forfeited his complaint on appeal.

However, even absent forfeiture, we conclude that Gutierrez's sentence did not constitute cruel and unusual punishment. 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) (en banc); Jordan v. State, 495 S.W.2d 949, 952 (Tex. Crim. App. 1973); Samuel v. State, 477 S.W.2d 611, 614 (Tex. Crim. App. 1972). The punishment assessed, eight years, falls within the applicable punishment range. Tex. Pen. Code Ann. ' 12.33(a) (Vernon 2003) (stating that the punishment range is from two to twenty years' imprisonment). Thus, the punishment is not, per se, prohibited as cruel, unusual, or excessive.

B. Disproportionate Sentence

We recognize, as Gutierrez posits, that it has been held that a sentence within the range of punishment may still violate the Eighth Amendment if it is grossly disproportionate to the offense committed. Solem, 463 U.S. at 289. However, the viability and mode of application of proportionate analysis in non-death penalty cases is currently in question. See McGruder v. Puckett, 954 F.2d 313, 315-16 (5th Cir.1992) (discussing the various opinions issued in Harmelin v. Michigan, 501 U.S. 957 (1991) and their impact on the Solem decision). In the present case, even if error had been preserved as to this argument, and assuming arguendo the viability of a proportionality review, eight years in prison is not a grossly disproportionate sentence considering the evidence presented as to the crime.[7]

III. Conclusion

We overrule Gutierrez's sole issue and affirm the trial court judgment.

ERRLINDA CASTILLO

Justice

Do not publish.

Tex. R. App. P. 47.2(b).

Memorandum Opinion delivered and filed

this 30th day of June, 2005.

[1] See Tex. R. App. P. 47.2, 47.4.

[2] See Tex. Code Crim. Proc. Ann. art. 42.02 (Vernon Supp. 2004-05).

[3] Tex. Pen. Code Ann. _ 21.11(a)(2)(A) (Vernon 2003). The offense is a third degree felony, id. _ 21.11(d) (Vernon 2003), punishable by a term of imprisonment of not more than ten years or less than two years. Id. _ 12.33(a) (Vernon 2003).

[4] Evidence showed that, as to the charged offense, Gutierrez exposed himself to his minor stepdaughter. Evidence also showed he had previously touched her inappropriately.

[5] A trial court's decision to proceed with an adjudication of guilt is one of absolute discretion

and is not reviewable. Williams v. State, 592 S.W.2d 931, 932 33 (Tex. Crim. App. 1979) (holding that an appellant cannot argue on appeal that the evidence adduced at the revocation hearing was insufficient to prove the allegations in the State's motion to adjudicate).

[6] Gutierrez filed a motion for new trial asserting the "verdict is contrary to the law and the evidence." The ground raised in the motion differs from the complaint on appeal. See Tex. R. App. P. 33.1(a)(1)(A).

[7] The McGruder court, analyzing the Supreme Court's splintered action in Harmelin v. Michigan, 501 U.S. 957, 965 (1991), concluded that "this much is clear: disproportionality survives, Solem does not." McGruder v. Pucket, 954 F.2d 313, 316 (5th Cir. 1992). Solem required an analysis of three questions: (1) the gravity of the offense and the harshness of the sentence; (2) the sentences imposed on other criminals in the same jurisdiction; and (3) the sentences imposed for commission of the same crime in other jurisdictions. Solem, 463 U.S. 277, 292 (1983). The McGruder court, drawing on one of the three opinions issued in Harmelin, refined the Solem analysis to explicitly require a threshold comparison of the harshness of the sentence and the gravity of the offense, and then only if the court inferred that the sentence is grossly disproportionate would it consider the remaining two factors enunciated by Solem. McGruder, 954 F.2d at 316. This Court has been cautious about applying the McGruder analysis. Sullivan v. State, 975 S.W.2d 755, 757 (Tex. App.BCorpus Christi 1998, no pet.). We need not consider its application today because the proportionality issue was not preserved and because no evidence as to the last two Solem factors was submitted to the trial court. See Solem, 463 U.S. at 292. Thus, no comparative analysis can be performed.