Danilo Santos Baletka v. The State of Texas--Appeal from 1A District Court of Tyler County

In The
Court of Appeals
Ninth District of Texas at Beaumont
____________________
NO. 09-04-180 CR
NO. 09-04-181 CR
____________________
DANILO SANTOS BALETKA, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 1-A Judicial District Court
Tyler County, Texas
Trial Court Cause No. 9746 and 9747
MEMORANDUM OPINION

Appellant, Danilo Santos Baletka, pled guilty to two counts of aggravated sexual assault of a child. See Tex. Penal Code Ann. 22.021(a)(2)(B) (Vernon Supp. 2005). The child involved in both assaults was Baletka's stepdaughter, A.T. Before accepting Baletka's guilty plea, the trial court admonished Baletka of the consequences, including the range of punishment applicable to the offenses charged. After conducting a sentencing hearing, the trial court sentenced Baletka to two concurrent terms of life imprisonment. (1) In this appeal, Baletka contends his sentence was cruel and unusual, as well as disproportionate to the seriousness of the offense, in violation of the Eighth and Fourteenth Amendments of the United States Constitution.

The State argues Baletka waived his issue by failing to timely present his objection to the trial court. The record before this Court reflects Baletka filed a motion for new trial in which he contended "[a] new trial should be granted because Petitioner believes the punishment rendered was excessive considering his previous history." The motion seems to address "his previous history" rather than the seriousness of the offenses. Nevertheless, we will review the excessiveness complaint made on appeal.

Baletka sexually assaulted A.T. twice within a period of two days. A.T. was twelve years old when the assaults occurred. In his voluntary statement, Balteka said he "punished" A.T. by sexually assaulting her. The investigating officer, Trisher Ford, testified Baletka told her he assaulted A.T. to punish her because of her attitude. Ford further stated the case was unusual and shocking because of the reason Baletka gave for the assaults. When asked at the sentencing hearing about his statement that he sexually assaulted A.T. to punish her, Baletka said, "[s]he didn't do nothing, really." He later testified: "I gave her the choice and she chose."

A.T.'s counselor, Rana Wingo, testified she sees A.T. once per week. Wingo testified A.T. has difficulty trusting people. Wingo also stated victims her age are very vulnerable, and victims of sexual assault often withdraw. A.T.'s mother testified A.T. became withdrawn, refused to discuss anything with her mother, and was very confused about her relationship with Baletka. A.T.'s mother testified A.T. "idolized" Baletka and "he didn't stand behind her like a father should and she doesn't understand that." She testified she would not trust Baletka with her daughter or any little girl.

Jan Strickland, a Tyler County Probation Officer, testified she performed a pre-sentence investigation. (2) Strickland stated she recommended in the PSI report Baletka receive probation based upon his lack of prior criminal history. When asked for her personal opinion, Strickland testified she did not believe Baletka should receive probation. In response to a question from the judge, Strickland clarified her PSI recommendation, saying she simply meant Baletka was eligible for probation.

Baletka's friend, Kenny Shotty, testified he had known Baletka for years, and he would trust Baletka with his sixteen-year-old daughter. Shotty also stated he had never punished his own daughter by sexually assaulting her. Howard Lilley, a retired Justice of the Peace, testified he has known Baletka for over twenty years, and thinks of him as a son. Lilley stated he would trust Baletka with his grandchildren. Kimberly Abbey, Baletka's former wife, stated Baletka is a wonderful father to their son, and she still trusts him completely. Abbey further testified that, if someone had sexually assaulted her own child, "there's no way that they would be allowed around my child." Baletka's mother testified that Baletka helps his parents on their farm, and she did not know of any prior criminal acts he had committed.

The Eighth Amendment provides that "[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." U.S. Const. amend. VIII; see generally Robinson v. California, 370 U.S. 660, 82 S. Ct. 1417, 1420-1421, 8 L. Ed. 2d 758 (1962) (the Fourteenth Amendment made the Eighth Amendment's prohibition against cruel and unusual punishment applicable to the states.). Aggravated sexual assault of a child is a first degree felony, for which the punishment range is life imprisonment or any term not more than 99 years or less than five years. See Tex. Penal Code Ann. 22.021(a)(2)(B) (Vernon Supp. 2005); Tex. Penal Code Ann. 12.32 (Vernon 2003).

We initially compare the gravity of Baletka's offenses against the severity of his sentence. (3) See Mathews v. State, 918 S.W.2d 666, 669 (Tex. App.--Beaumont 1996, pet. ref'd); Puga v. State, 916 S.W.2d 547, 549 (Tex. App.--San Antonio 1996, no pet.). Baletka's sentence of life imprisonment for each offense was at the top of the punishment range authorized by statute for the offense. The Texas Legislature has taken various steps to demonstrate the extreme gravity with which aggravated sexual assault on children is viewed. Aggravated sexual assault on a child under 14 years of age is a first degree felony regardless of whether any other violence is present, and the offense is classified as an aggravated offense for purposes of parole. (4) See Tex. Gov't Code 508.145(d) (Vernon 2004). See also Tex. Gov't Code 508.046 (Vernon 2004).

The record reflects Baletka was the step-father of the victim and in a position of trust and authority. He sexually assaulted his stepdaughter twice within two days. He said he did this to punish her. The evidence showed that A.T. suffered from psychological problems as a result of the assaults. As this Court has previously noted, "[c]ertainly the great potentiality for mental, emotional, and physical scarring of a sexual assault victim -- a child of such tender years -- cannot be seriously questioned." See Mathews, 918 S.W.2d at 669. We cannot say the sentence is grossly disproportionate to the seriousness of the crime or constitutes cruel and unusual punishment. (5) Baletka's sole issue is overruled, and the judgment of the trial court is affirmed.

 

AFFIRMED.

_________________________________

DAVID GAULTNEY

Justice

 

Submitted on January 26, 2005

Opinion Delivered February 16, 2005

Do Not Publish

 

Before McKeithen, C.J., Gaultney and Kreger, JJ.

1. The State says in its brief: "The trial court was authorized to assess consecutive life sentences, Tex. Penal Code section 3.03(b)(2), requiring service of 60 calendar years before appellant would be eligible for parole consideration, Tex. Gov't Code 508.145(d), but instead assessed the sentences concurrently, effectively cutting appellant's minimum calendar sentences in half."

2. The pre-sentence investigation report is not in the record.

3. In Solem v. Helm, 463 U.S. 277, 290, 103 S. Ct. 3001, 77 L. Ed. 2d 637 (1983), the Supreme Court held the Eighth Amendment prohibits sentences that are disproportionate to the crime committed. In Harmelin v. Michigan, 501 U.S. 957, 111 S. Ct. 2680, 115 L. Ed. 2d 836 (1991), the Court revisited the proportionality analysis. In McGruder v. Puckett, 954 F.2d 313, 316 (5th Cir. 1992), cert. denied, 506 U.S. 849, 113 S. Ct. 146, 121 L. Ed. 2d 98 (1992), the Fifth Circuit Court of Appeals interpreted Harmelin as follows:

[D]isproportionality survives; Solem does not . . . . Accordingly, we will initially make a threshold comparison of the gravity of [appellant's] offenses against the severity of his sentence. Only if we infer that the sentence is grossly disproportionate to the offense will we then consider the remaining factors of the Solem test and compare the sentence received to (1) sentences for similar crimes in the same jurisdiction and (2) sentences for the same crime in other jurisdictions.

In Mathews, this Court followed this approach. See Mathews v. State, 918 S.W.2d 666, 669 (Tex. App.--Beaumont 1996, pet. ref'd).

4. Further, the Legislature has provided that a life sentence is mandatory for any offender who is convicted of the sexual assault of a child a second time. See Tex. Penal Code Ann. 12.42(c)(2)(B)(v) (Vernon Supp. 2005); Wieghat v. State, 76 S.W.3d 49, 52 (Tex. App.--San Antonio 2002, no pet.); Williams v. State, 10 S.W.3d 370, 372 (Tex. App.--Tyler 1999, pet. ref'd).

5. Baletka provided no evidence in this record of sentences for similar crimes in this jurisdiction or the same crime in other jurisdictions. See Latham v. State, 20 S.W.3d 63, 69 (Tex. App.--Texarkana 2000, pet. ref'd).