KYLE CORY v. THE STATE OF TEXAS--Appeal from 36th District Court of San Patricio County

NUMBER 13-05-603-CR

NUMBER 13-05-604-CR

NUMBER 13-05-605-CR

NUMBER 13-05-606-CR

NUMBER 13-05-607-CR

 
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG

KYLE CORY, Appellant,

 
v.

THE STATE OF TEXAS, Appellee.

 
On appeal from the 36th District Court
of San Patricio County, Texas.
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Ya ez and Castillo
Memorandum Opinion by Justice Castillo

By two points of error, appellant Kyle Cory appeals the judgment of punishment. We affirm.

Background

Cory pleaded guilty without the benefit of a plea bargain to five separate indictments alleging he committed multiple counts of sexual conduct and contact involving five different children. (1) At the plea hearing, the trial court admonished Cory as to the range of punishment in each case and the possibility that the sentences imposed could run concurrently. Cory acknowledged he understood the admonishments. Cory elected that the trial court assess punishment. The trial court convened an evidentiary hearing on punishment. Numerous witnesses, including Cory, testified. After considering the stipulated evidence and the testimony presented, the trial court concluded that "there is a very high risk level of re-offending in this case." The trial court assessed punishment in each case at fifteen years in the Institutional Division of the Department of Criminal Justice. The trial court ordered that each term run concurrently as to the counts within each indictment and consecutively as to each indictment.

Disproportionate Punishment

By his first point of error, Cory asserts that the seventy-five year sentence is disproportionate to the nature of the offenses to which he judicially confessed. By his second point of error, he asserts that the sentences were disproportionate to each other because the number of counts in each indictment varied while the punishment was the same. He concedes that the sentence imposed for each indictment is within the range of punishment for the offenses alleged. The State responds that the punishment assessed is within the range of punishment for each offense, the punishment is not cruel and unusual, and Cory has not shown prejudice by the complained-of stacking of the sentences.

Cory 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. He did not lodge an objection, under constitutional or other grounds, to the alleged disparity, cruelness, unusualness or excessiveness of the sentences.

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); see Blue v. State, 41 S.W.3d 129, 131 (Tex. Crim. App. 2000) (en banc). "All a party has to do to avoid the forfeiture of a complaint on appeal is to let the trial judge know what he wants, why he thinks himself entitled to it, and to do so clearly enough for the judge to understand him at a time when the trial court is in a proper position to do something about it." Keeter v. State, 175 S.W.3d 756, 764 (Tex. Crim. App. 2005) (quoting Lankston v. State, 827 S.W.2d 907, 909 (Tex. Crim. App. 1992) (en banc)); Mercado v. State, 718 S.W.2d 291, 296 (Tex. Crim. App. 1986) (en banc); 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 violative of Eighth Amendment was forfeited by failure to object); Quintana v. State, 777 S.W.2d 474, 479 (Tex. App.-Corpus Christi 1989, pet. ref'd) (holding that failure to object to a sentence as cruel and unusual forfeits error). Even constitutional claims can be forfeited by failure to object. See Smith v. State, 721 S.W.2d 844, 855 (Tex. Crim. App. 1986). In this case, by failing to object to the trial court's sentence below, Cory has forfeited his complaints on appeal.

We observe that a trial court has absolute discretion to cumulate sentences. See Tex. Code Crim. Proc. Ann. art. 42.08 (Vernon Supp. 2005); Green v. State, 706 S.W.2d 653, 656 (Tex. Crim. App. 1986). We further observe that an accused has no right to a concurrent sentence. Carney v. State, 573 S.W.2d 24, 27 (Tex. Crim. App. 1978).

We are mindful that a sentence outside the maximum or minimum range of punishment is unauthorized by law and therefore illegal. Escochea v. State, 139 S.W.3d 67, 80 (Tex. App.-Corpus Christi 2004, no pet.) (citing Mizell v. State, 119 S.W.3d 804, 806 (Tex. Crim. App. 2003)). Unlike most trial errors, which are forfeited if not timely asserted, a party is not required to make a contemporaneous objection to the imposition of an illegal sentence. Id. (citing Mizell, 119 S.W.3d at 806 n.6). Thus, an appellate court that otherwise has jurisdiction over a criminal conviction may always notice and correct an illegal sentence. Id. (citing Mizell, 119 S.W.3d at 806).

In this case, the trial court admonished Cory as to the consequences of his guilty pleas, the range of punishment for each offense, and the possibility that the sentences could run consecutively. Cory acknowledged he understood. On appeal, he concedes all charged offenses are second-degree felonies. See Tex. Pen. Code Ann. 21.11(d) (Vernon 2003), 22.011(f) (Vernon Supp. 2005). He further concedes he was duly admonished and understood the admonishments. Cory's sentence falls in the range of punishment for a second degree felony. See Tex. Pen. Code Ann. 12.33(a) (Vernon 2003) (A felony of the second degree is punishable by a term of imprisonment for a term of not more than twenty years or less than two years, with a fine not to exceed $ 10,000.). The sentence imposed was within the applicable range of punishment and, thus, not illegal. Mizell, 119 S.W.3d at 806.

Moreover, because the sentence falls within the range of punishment, it is not cruel and unusual. See Samuel v. State, 477 S.W.2d 611, 614 (Tex. Crim. App. 1972). Further, the sentence is not a grossly disproportionate sentence in light of the stipulated and testimonial evidence presented as to the numerous offenses against children, and so no constitutional violation occurred. See Solem v. Helm, 463 U.S. 277, 289 (1983); 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). Finally, the cumulation of sentences does not constitute cruel and unusual punishment. Smith v. State, 667 S.W.2d 534, 538 (Tex. Crim. App. 1984).

 

Conclusion

We overrule Cory's two points of error 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 3rd day of August, 2006.

1. Cory pleaded guilty to a total of sixteen counts of sexual assault of a child and one count of indecency with a child. Cory judicially confessed that computer chat rooms led him to the minor victims.