Perez, Luis Alfredo

Opinion

PD-0373-15

PD-0373-15 COURT OF CRIMINAL APPEALS AUSTIN, TEXAS

Transmitted 3/31/2015 3:37:33 PM Accepted 4/1/2015 4:59:23 PM ABEL ACOSTA

IN THE COURT OF CRIMINAL APPEALS CLERK OF AUSTIN, TEXAS

LUIS ALFREDO PEREZ, § Appellant § §

VS. § §

THE STATE OF TEXAS, § Appellee §

ON PETITION FOR DISCRETIONARY REVIEW FROM THE DECISION OF THE COURT OF APPEALS FOR THE EIGHTH DISTRICT OF TEXAS, AT EL PASO, TEXAS IN CAUSE NO. 08-13-00103-CR AFFIRMING APPELLANT'S CONVICTION AND SENTENCE IN CAUSE NO. 1245990D

HONORABLE LOUIS E. STURNS, PRESIDING FROM THE 213TH DISTRICT COURT OF TARRANT COUNTY, TEXAS

APPELLANT'S PETITION FOR DISCRETIONARY REVIEW

April 1, 2015

Richard A. Henderson State Bar No. 09427100

RICHARD A. HENDERSON, P.C. 100 Throckmorton Street, Suite 540 Fort Worth, Texas 76102 817-332-9602 - Telephone 817-335-3940 - Facsimile richard(ã,ahenderson. corn

ATTORNEY FOR APPELLANT, Luis ALFREDO PEREZ

SUBJECT INDEX

IDENTITY OF PARTIES AND COUNSEL ...........................................................ii TABLE OF AUTHORITIES .................................................................................... iii STATEMENT REGARDING ORAL ARGUMENT...............................................1 STATEMENT OF THE CASE ................................................................................. 1 STATEMENT OF PROCEDURAL HISTORY....................................................... GROUNDSFOR REVIEW ...................................................................................... REASONSFOR REVIEW .......................................................................................

GROUNDONE.................................................................................................1 CONCLUSION AND PRAYER...............................................................................4 CERTIFICATE OF COMPLIANCE ........................................................................ 5 CERTIFICATE OF SERVICE.................................................................................. 5 APPENDICES...........................................................................................................6 Appendix "A" (Opinion of the Court of Appeals Eighth District of Texas, El Paso,Texas)

IDENTITY OF PARTIES AND COUNSEL The following is a complete list of all parties pursuant to Texas Rules of Appellate Procedure 68.4(a):

Mr. Luis Alfredo Perez, TDC#01840600 3899 State Hwy 98 New Boston, Texas 75570 Defendant/Appellant 2. Ms. Rose Anna Salinas 1214 Fairmount Avenue Fort Worth, Texas 76104 Trial Attorney 3. THE STATE OF TEXAS Ms. Tasha S. Foster Trial Counsel Tarrant County District Attorney's Office Mr. Charles Mallin Former Chief of Appellate Tarrant County District Attorney's Office Mr. Joe Shannon, Jr. Former Criminal District Attorney Tarrant County, Texas Ms. Debra Windsor, Benson Varghese Appellate Counsel for Appellee Tarrant County District Attorney's Office Ms. Sharen Wilson Criminal District Attorney Tarrant County, Texas 401 W. Belknap Street, Fort Worth, Texas 76196 Plaintiff /Appellee 4. Honorablig Louis E. Sturns Judge, 213t District Court 401 W. Belknap Street Fort Worth, Texas 76196 Trial Judge

5. Richard A. Henderson Richard A. Henderson, P.C. 100 Throckmorton Street, Suite 540 Fort Worth, Texas 76102 Attorney for Appellant

111

TABLE OF AUTHORITIES

CASES

Acosta v. State, 160 S.W.3d 204 (Tex. App.—Ft. Worth 2005 no pet.).........................................3

Calhoun v. State, 214 S.W.335 (Tex. Crim. App. 1919).................................................................3

Delacruz v. State, 167 S.W.3d 904 (Tex. App.—Texarkana 2005) .................................................. 3

Harmelin v. Michigan, 501 U.S. 957 (1991) .............................................................................................3

Jordan v. State, 495 S.W.2d 949, 952 (Tex.Crim. App. 1973)......................................................3

McGruder v. Puckett, 954 F2d 316 (5th Cir.) cert denied 506 U.S. 849 (1992) .....................................3

CONSTITUTIONS:

8" Amendment of the United States Constitution.....................................................3

Article 1 Section 13 of the Texas Constitution.........................................................3

STATEMENT REGARDING ORAL ARGUMENT

Petitioner believes that oral argument would aid the court in deciding the

critical issues presented.

STATEMENT OF THE CASE

Appellant pleaded guilty to murder before the court and was sentenced to

fifty (50) years by the trial court after a presentence report and punishment hearing.

STATEMENT OF PROCEDURAL HISTORY

The Court of Appeals issued its Opinion affirming the conviction on March

4, 2015. No Motion for Rehearing was filed. This Petition for Discretionary

Review is timely if filed on or before April 3, 2015.

GROUNDS FOR REVIEW

GROUND ONE: Is a ruling on a Motion for New Trial necessary when Appellant complains that his punishment was cruel and unusual and disproportionate?

REASONS FOR REVIEW

Reason for Review Ground One:

The Appellate Court in its opinion ruled that Appellant had failed to preserve

the issue of cruel and unusual punishment and disproportionality of the punishment by not presenting the motion for new trial to the trial court and obtaining a ruling.

The Appellate court stated that by not objecting at the sentencing hearing and by

not presenting the Motion for New Trial to the trial court that Appellant failed to

give the trial court notice that Appellant wanted the trial court to take some action

ostensibly to correct its error.

With all due respect, Appellant believes that the trial court knows if a

punishment is cruel and unusual and/or disproportionate without an objection or a

Motion for New Trial.

A short summary of the facts is as follows:

Appellant and his significant other, Nubia Perez, were having problems

getting along and with visitation of their two young children after a stormy

relationship. Each was charged with assaults on the other. Nubia believed that

Appellant was an alcoholic and their altercations occurred when Appellant had

been drinking. The couple had separated and reconciled various times.

On July 3, 2011, Nubia was staying with her mother, Maria Ramirez at an

apartment in Arlington, Texas in Tarrant County, Appellant wanted to take the

children for a visitation. Nubia refused. Appellant came to the apartment to

3

confront Nubia. Maria went outside to confront Appellant. After a conversation,

Appellant pulled out a gun and shot Maria. She died of this gunshot wound.

Appellant is twenty-five (25) years old. The sentence is double his current

age. The mitigating circumstances of his life as testified to by his relatives and

friends were that this was not the Appellant that they knew and urged and

testified to his good character. They testified that Appellant was a loving father and

a hard worker. They urged the judge to impose a reasonable sentence.

Appellant believes his punishment of fifty (50) years is cruel and unusual

and disproportionate and violates both the 8th Amendment of the United States

Constitution and Article 1 Section 13 of the Texas Constitution, Calhoun v. State,

214 S.W.335 (Tex. Crim. App. 1919); Jordan v. State, 495 S.W.2d 949, 952

(Tex.Crim. App. 1973); Delacruz v. State, 167 S.W.3d 904 (Tex. App.—Texarkana

2005); Acosta v. State, 160 S.W.3d 204; (Tex.App.—Ft. Worth 2005 no pet.);

McGruder v. Puckett, 954 F2d 316 (5th Cir.) cert denied 506 U.S. 849 (1992) and

Harmelin v. Michigan, 501 U.S. 957 (1991).

The Appellate court never reached the merits of the appeal because they

stated that Appellant had essentially waived the error. Appellant urges this court to

grant his petition and order the Court of Appeals to consider the merits of his

appeal.

CONCLUSION AND PRAYER

WHEREFORE, Appellant respectfully prays that this Court reverse the

decision of the Court of Appeals and the Trial Court and remand this cause to the

court of Appeals and to order the trial court to conduct a new trial.

Respectfully Submitted,

RICHARD A. HENDERSON, P.C. Two City Place 100 Throckmorton Street, Suite 540 Fort Worth, Texas 76102 (Telephone) 817-332-9602

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Richard A. Henderson State Bar No. 09427100

ATTORNEY FOR APPELLANT

CERTIFICATE OF COMPLIANCE

This document complies with the typeface requirements of Tex.R. App.

Proc. 9.4(e), because it has been prepared in a conventional typeface no smaller

than 14-point for text and 12-point for footnotes. This document also complies

with the word-count limitations of Tex.R.App.P. Rule 9.4(i), because it contains

1,245 words, excluding any parts exempted by Tex.R.App.Proc 9.4(i) (1), as

computed by the word-count feature of Microsoft ce Word 2019, the computer

program used to prepare the document.

A. Henderson

CERTIFICATE OF SERVICE

A true copy of the foregoing document has been electronically served on

opposing counsel, Ms. Debra Windsor, Assistant District Attorney, Chief of

Appellant Section, Tarrant County District Attorney's office, 401 W Belknap

Street, Fort Worth, Texas 76196 and mailed U.S. Regular Mail to Appellant, Mr.

Luis Alfredo Perez, TDCJ #1840600, Telford Unj3899 State Hwy/98, New

Boston, Texas 75570 on this the 31st day of

Rich'ai'd A. Henderson

APPENDICES

APPENDIX "A"

OPINION/JUDGMENT COURT OF APPEALS EIGHTH DISTRICT OF TEXAS EL PASO, TEXAS

ItI

COURT OF APPEALS EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

§

LUIS ALFREDO PEREZ, No. 08-13-00103-CR §

Appellant, Appeal from §

I , , 213th District Court §

THE STATE OF TEXAS, of Tarrant County, Texas §

Appellee. (TC # 1245990D)

§

OPINION

Luis Alfredo Perez appeals his conviction of murder. Appellant waived his right to a jury

trial and entered an open plea of guilty before the trial court. The trial court assessed punishment

at imprisonment for a term of fifty years. Finding no error, we affirm.'

DISPROPORTIONATE SENTENCE

In his sole issue, Appellant contends that the sentence of fifty years is constitutionally

disproportionate and constituted cruel and unusual punishment in violation of the Eighth

Amendment and Article 1, Section 13 of the Texas Constitution. The State responds that

This appeal was transferred from the Second Court of Appeals to the Eighth Court of Appeals pursuant to a docket equalization order issued by the Texas Supreme Court. We have applied precedent of the Second Court of Appeals as required by TEX.R.APP.P. 41.3.

Appellant failed to preserve error because he did not present his motion for new trial to the trial

court.

To present a complaint on appeal, the record must show that the party brought the error to

the attention of the trial court by a timely and specific request, objection, or motion.

TEx.R.APP.P. 33.1(a). The defendant can preserve a complaint that a sentence is

disproportionate for the crime or circumstances particular to the defendant's case by making a

timely and specific objection when sentence is pronounced or by raising it in a motion for new

trial. See Rhoades v. State, 934 S.W.2d 113, 120 (Tex.Crim.App. 1996); Kim v. State, 283

S.W.3d 473, 475 (Tex.App.--Fort Worth 2009, pet. ref d). Appellant did not object when the

trial court pronounced sentence, but he filed a motion for new trial asserting that his sentence

was constitutionally disproportionate. To preserve an issue by motion for new trial in a criminal

case, the defendant must present the motion to the trial court within ten days of filing it unless

the trial court permits it to be presented and heard within seventy-five days from the date

sentence was imposed or suspended in open court. TEx.R.APP.P. 21.6. The purpose of Rule

21.6 is "to put the trial court on actual notice that a defendant desires the trial court to take some

action on the motion for new trial such as a ruling or a hearing on it." Stokes v. State, 277

S.W.3d 20, 21 (Tex.Crim.App. 2009), quoting Carranza v. State, 960 S.W.2d 76, 78

(Tex.Crim.App. 1998). The filing of a motion for new trial alone is not sufficient to show

presentment. Stokes, 277 S.W.3d at 21. The record must show that the trial court has actual

notice of the motion. See Richardson v. State, 328 S.W.3d 61, 72 (Tex.App.--Fort Worth 2010,

pet. ref d). Presentment can be accomplished in several ways, including by obtaining a ruling on

3

the motion for new trial, the trial judge's signature or notation on a proposed order, or a hearing

date on the docket sheet. See Stokes, 277 S.W.3d at 21-22; Carranza, 960 S.W.2d at 79; Burrus

v. State, 266 S.W.3d 107, 115 (Tex.App.--Fort Worth 2008, no pet.).

Appellant raised the disproportionate sentence issue in his timely filed motion for new

trial, but there is nothing in the record showing that he presented the motion to the trial court.

Consequently, we find that Appellant failed to preserve this issue. See Richardson, 328 S.W.3d

March 4, 2015 ANN CRAWFOMcCLURE, Chief Justice

Before McClure, C.J., Rodriguez, J., and Barajas, CT, (Senior Judge) (Barajas, CT, Senior Judge, sitting by assignment)

(Do Not Publish)

COURT OF APPEALS EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

§

LUIS ALFREDO PEREZ, No. 08-13-00103-CR §

Appellant, Appeal from §

V. 213th District Court §

THE STATE OF TEXAS, of Tarrant County, Texas §

Appellee. (TC # 1245990D)

§

JUDGMENT

The Court has considered this cause on the record and concludes there was no error in the

judgment. We therefore affirm the judgment of the court below. This decision shall be certified

below for observance.

IT IS SO ORDERED THIS 4TH DAY OF MARCH, 2015.

ANN CRAWFORD McCLURE, Chief Justice

Before McClure, C.J., Rodriguez, J., and Barajas, C.J., (Senior Judge) (Barajas, C.J., Senior Judge, sitting by assignment)