Kadin Michael Perez v. the State of Texas

Opinion

NUMBER 13-22-00092-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI – EDINBURG

KADIN MICHAEL PEREZ, Appellant,

v.

THE STATE OF TEXAS, Appellee.

On appeal from the 24th District Court of Victoria County, Texas.

MEMORANDUM OPINION

Before Justices Benavides, Hinojosa, and Silva Memorandum Opinion by Justice Benavides

Appellant Kadin Michael Perez pleaded guilty to four counts of harassment of a

public servant, a third-degree felony, without an agreed punishment recommendation

from the State. See TEX. PENAL CODE ANN. § 22.11(a), (b). The trial court found Perez

guilty and assessed punishment at ten years’ confinement on each count, with the sentences to run concurrently. By a single issue, Perez contends that the sentences

imposed violate his Eighth Amendment right to be free from cruel and unusual

punishment. See U.S. CONST. amends. VIII, XIV. We affirm.

I. BACKGROUND

During his arrest for public intoxication, Perez spit on four police officers, telling

them he was infected with COVID-19 and that he hoped they would contract the virus and

die. Perez was taken to a hospital where he tested positive for COVID-19.

Indicted by the State on four counts of harassment of a public servant, Perez

entered guilty pleas on each count, waived his right to a jury trial, and made a request for

probation. The trial court accepted his pleas, ordered a presentencing investigation

report, and set the matter for a sentencing hearing.

During the hearing, a body camera recording of the incident was entered into

evidence and played for the trial court. None of the officers contracted COVID-19 from

Perez, but each testified about how the incident negatively impacted their lives.

Several of Perez’s family members testified on his behalf, saying that his behavior

in the video was not indicative of his character. They believed that Perez was suffering

from mental health and substance abuse issues and that he would benefit from treatment

programs. All family members agreed that probation would be the best outcome for Perez.

The presentencing investigation report noted that in the five months preceding the

incident, Perez had been arrested four times for public intoxication. The report also

indicated that Perez was eligible for deferred adjudication or regular community

supervision and that various programs were available to address his specific issues.

2 After the sentences were pronounced, the trial court asked Perez’s counsel,

“Anything else from the Defense?” He replied, “Nothing further from the Defense.” No

motion for a new trial was filed. This appeal ensued.

II. ANALYSIS

In his single point of error, Perez contends that the trial court’s imposition of ten-

year sentences, although within the range of punishment provided for these offenses,

violates the Eighth Amendment’s prohibition against excessive sentences. See U.S.

CONST. amends. VIII, XIV. Perez acknowledges that Texas courts have held that a

sentence assessed within the range of punishment prescribed by the Legislature is not

excessive, cruel, or unusual, but points out that a narrow exception to this rule exists

when the sentence assessed is grossly disproportionate to the crime. See Solem v. Helm,

463 U.S. 277, 288 (1983); State v. Simpson, 488 S.W.3d 318, 323 (Tex. Crim. App. 2016).

Perez also acknowledges that he did not “raise a specific objection to the

sentence” when it was pronounced or in a motion for new trial. Nonetheless, he asserts

that he preserved this issue for appeal because “trial counsel argued strenuously for

probation and treatment as opposed to any term of imprisonment.” Thus, according to

Perez, his constitutional complaint was “apparent from the context.” The State responds

that Perez forfeited his complaint because generally arguing for probation, no matter how

emphatically, does not alert the trial court that imposing a sentence of confinement would

implicate the Eighth Amendment. We agree with the State.

Generally, to preserve error for appellate review, the record must show that an

objection was made to the trial court, the grounds for relief were made “with sufficient

3 specificity to make the trial court aware of the complaint, unless the specific grounds were

apparent from the context,” and the trial court ruled upon the objection. TEX. R. APP. P.

33.1(a)(1)(A); see Gibson v. State, 541 S.W.3d 164, 166 (Tex. Crim. App. 2017); Thomas

v. State, 505 S.W.3d 916, 924 (Tex. Crim. App. 2016). Although error preservation does

not require a “hyper-technical or formalistic use of words or phrases,” the complainant

must “let the trial judge know what he wants, why he thinks he is entitled to it, and to do

so clearly enough for the judge to understand him at a time when the judge is in the proper

position to do something about it.” Golliday v. State, 560 S.W.3d 664, 670 (Tex. Crim.

App. 2018) (quoting Clark v. State, 365 S.W.3d 333, 339 (Tex. Crim. App. 2012)). Further,

“the trial court should know when it is being asked to make a constitutional ruling because

constitutional error is subject to a much stricter harm analysis on appeal.” Clark, 365

S.W.3d at 340 (citing TEX. R. APP. P. 44.2(a), (b)). A reviewing court should not address

the merits of an issue that has not been preserved for appeal. Wilson v. State, 311 S.W.3d

452, 473 (Tex. Crim. App. 2010) (quoting Ford v. State, 305 S.W.3d 530, 532 (Tex. Crim.

App. 2009)).

Here, Perez’s counsel made the following remarks during closing:

Your Honor, if you get past the raw emotion of the video and look at Mr. Perez’s overall history, demeanor, personality, characteristics, I think that he’s a very good candidate for community supervision. I believe that he would succeed at that. There’s been some testimony that he regrets what he d[id]. I know I can’t testify personally, but I do believe that he is remorseful. I think that a community supervision [period] of two years would be an appropriate punishment in this case. I do not believe he’s a danger to society at large. I don’t believe he’s a danger to people that have dedicated their lives to public service.

I believe he’s learned his lesson; and I’d like to see him get a chance to prove that to the Court and to his family, who is here to support him.

4 The State opposed Perez’s request for probation. It did not seek a specific sentence but

stressed the need to “deter this type of crime in Victoria County.”

In pronouncing Perez’s sentence, the trial court expressed its view regarding the

gravity of the offenses. In its opinion, the State could have charged Perez with the more

serious offenses of aggravated assault because “it could be argued that the saliva

containing the COVID-19 virus could cause serious bodily injury or death.” See TEX.

PENAL CODE ANN. § 22.02(a)(1), (b)(2)(B).

It is not clear from this context that Perez was implicitly arguing that confinement

would offend the Eighth Amendment as grossly disproportionate. We first note the

unusual timing of Perez’s purported objection. Essentially, Perez contends that he

preemptively objected to any sentence of confinement before his punishment was even

assessed, and before he knew that he was receiving the maximum punishment. See id.

§ 12.34(a) (establishing the sentencing range for a third-degree felony at “not more than

10 years or less than 2 years”). Typically, to preserve a complaint that a sentence is

grossly disproportionate, a defendant must object to the sentence “at the time it was

imposed or in a motion for new trial.” Russell v. State, 341 S.W.3d 526, 527 (Tex. App.—

Fort Worth 2011, no pet.) (quoting Kim v. State, 283 S.W.3d 473, 475 (Tex. App.—Fort

Worth 2009, pet. ref’d)); see, e.g., Alvarez v. State, 525 S.W.3d 890, 892 (Tex. App.—

Eastland 2017, pet. ref’d) (finding waiver where appellant “made no objection to his

sentence in the trial court, either at the time of disposition or in any posttrial motion”).

Even if we assume that such an objection could be raised before the sentence is

imposed, the trial court did not understand that it was “being asked to make a

5 constitutional ruling.” See Clark, 365 S.W.3d at 340. In determining a disproportionality

claim, courts evaluate three factors: (1) the gravity of the offense and the harshness of

the penalty; (2) the sentences imposed on other criminals in the same jurisdiction; and

(3) the sentences imposed for the commission of the same crime in other jurisdictions.

Solem, 463 U.S. at 292; Simpson, 488 S.W.3d at 323. Here, Perez did not discuss or

produce evidence comparing sentences imposed in Texas and elsewhere for the same

offense, 1 and the trial court did not indicate through its statements or actions that it

considered the second and third Solem factors. See Gonzalez v. State, 616 S.W.3d 585,

591 (Tex. Crim. App. 2020), cert. denied, 142 S. Ct. 436 (2021) (“A complaint is obvious

if there are ‘statements or actions on the record that clearly indicate what the judge and

opposing counsel understood the argument to be.’” (quoting Clark, 365 S.W.3d at 339)).

Rather, by suggesting that he was “a very good candidate for community

supervision” and that two years of community service “would be an appropriate

punishment in this case,” Perez was merely arguing for leniency. See TEX. CODE CRIM.

PROC. ANN. art. 42A.053(d)(1) (establishing the minimum period of community

supervision in felony cases as “the same as the minimum term of imprisonment applicable

to the offense”). But in explaining “why he thinks he is entitled to” community supervision,

Perez never invoked the Constitution. See Golliday, 560 S.W.3d at 670. And requesting

community supervision is “not so clearly connected to constitutional protections” that it

1 Consequently, even if Perez had preserved the error, his claim would fail. See, e.g., Alberto v.

State, 100 S.W.3d 528, 530 (Tex. App.—Texarkana 2003, no pet.) (“Even if Alberto’s contention had been preserved for review, there is no evidence in the record comparing the sentences imposed on persons in Texas with sentences imposed against defendants in other jurisdictions who committed a similar offense.”).

6 can be assumed to raise an Eighth Amendment objection to confinement. See Clark, 365

S.W.3d at 340; see also Cantley v. State, No. 01-09-00048-CR, 2009 WL 3930782, at

*3–4 (Tex. App.—Houston [1st Dist.] Nov. 19, 2009, no pet.) (mem. op., not designated

for publication) (rejecting argument that appellant’s “long-standing belief that probation

(deferred adjudication) was the appropriate punishment” preserved Eighth Amendment

challenge). Because Perez’s purported objection lacked the requisite specificity to alert

the trial court that he was requesting a constitutional ruling, Perez did not preserve this

issue for appeal. See Clark, 365 S.W.3d at 340; TEX. R. APP. P. 33.1. Accordingly, Perez’s

issue is overruled.

III. CONCLUSION

We affirm the trial court’s judgment.

GINA M. BENAVIDES Justice

Do not publish. TEX. R. APP. P. 47.2(b).

Delivered and filed on the 25th day of August, 2022.