In The Court of Appeals Seventh District of Texas at Amarillo
Nos. 07-14-00286-CR 07-14-00287-CR
SAMUEL FUENTE ORTEZ, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
On Appeal from the 40th District Court Ellis County, Texas Trial Court Nos. 37,162CR & 38,598CR, Honorable Bob Carroll, Presiding
December 5, 2014
MEMORANDUM OPINION Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.
Samuel Fuente Ortez, appellant, appeals his convictions for aggravated assault
with a deadly weapon1 and “accident involving personal injury.”2 The prison sentences
1 The State alleged, via indictment, that appellant did “then and there intentionally, knowingly, or recklessly cause bodily injury to Michael Stines by driving his vehicle on the wrong side of the road causing a head-on collision with the vehicle Michael Stines was riding in, and the defendant did then and there use or exhibit a deadly weapon, to-wit: a motor vehicle, during the commission of said assault.” 2 Regarding the latter offense, the State alleged, via indictment, that appellant did “then and there intentionally or knowingly drive a vehicle that became involved in an accident resulting in serious bodily injury to Lynn Stines and the said defendant did thereafter, knowing said accident had occurred, intentionally or knowingly fail to render to Lynn Stines reasonable assistance when it was then apparent that Lynn Stines was in need of medical treatment.” The crime is found at sections 550.021 and 550.023 of the Texas Motor Vehicle Code. levied for each were fifteen and ten years, respectively. Appellant attacks his conviction
for aggravated assault by contending that the evidence was insufficient to prove the use
or exhibition of a deadly weapon during the crime. Regarding his other conviction, he
believes that the punishment assessed was “grossly disproportionate to the crime
charged and to the offender's personal circumstance.” We affirm.
Background
After spending a day drinking numerous cans of beer, appellant entered a car
with an acquaintance, began driving down the road, crossed into the lane of on-coming
traffic, and remained there for twenty to thirty seconds until colliding head-on with
another vehicle moving in the opposite direction. The two individuals in the vehicle
struck by appellant (that is, Mr. and Mrs. Stines) were severely injured, could be heard
moaning, and required extensive medical treatment. The passenger riding with
appellant also suffered injuries, though not to the same extent as the Stines. Despite
his involvement in the collision and presence of three injured people at the accident
scene, appellant exited the car he drove and walked away.
Appellant does not dispute that he intentionally, knowingly or recklessly caused
others to suffer serious bodily injury. Nor does he deny leaving the scene of an
accident in which he was involved without rendering aid to or securing help for anyone.
Issue One—Sufficiency of the Evidence
As previously mentioned, appellant believes that no evidence appears of record
upon which the fact finder could conclude, beyond reasonable doubt, that he used or
exhibited a deadly weapon when assaulting Mr. Stines with a car. We overrule the
issue.
2 The pertinent standard of review is well known and needs no discussion. It is
enough to simply refer the litigants to Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct.
2781, 61 L.Ed.2d 560 (1979) and Brooks v. State, 323 S.W.3d 893, 899 (Tex. Crim.
App. 2010) for its discussion.
Next, section 22.01 of the Texas Penal Code states that a person commits
assault if he "intentionally, knowingly, or recklessly causes bodily injury to another."
TEX. PENAL CODE ANN. § 22.01(a)(1) (West Supp. 2014). One commits aggravated
assault by intentionally, knowingly, or recklessly causing bodily injury to another and
"uses or exhibits a deadly weapon during the commission of the assault." Id. §
22.02(a)(2). As can be seen, a distinguishing feature between the two crimes is the use
or exhibition of a deadly weapon. Statute defines the latter as "anything that in the
manner of its use or intended use is capable of causing death or serious bodily injury."
Id. § 1.07(a)(17)(B); Gordon v. State, 173 S.W.3d 870, 873 (Tex. App.—Fort Worth
2005, no pet.); Dotson v. State, 146 S.W.3d 285, 299 (Tex. App.—Fort Worth 2004,
pet. ref'd). That a motor vehicle or car can be a deadly weapon is beyond dispute. See
e.g., Tyra v. State, 897 S.W.2d 796, 798 (Tex. Crim. App. 1995) (wherein a motor
vehicle was found to constitute a deadly weapon). And, for a car to be such, the driver
need not use or exhibit it with the intent to achieve a specific purpose. As explained by
our Court of Criminal Appeals in Walker v. State, 897 S.W.2d 812 (Tex. Crim. App.
1995), "it is evident that not all deadly weapons need be used with an intent to achieve
a specific purpose”; so, where the purported deadly weapon is an automobile, the State
may obtain an affirmative finding without having to prove that the accused intended to
use the vehicle as a weapon. Id. at 814.
3 Here, an officer testified that motor vehicles have caused death and that they
could be considered a deadly weapon. Moreover, as depicted in the record at bar,
driving a vehicle into another car may and actually did cause individuals to suffer
serious bodily injury. Given this, the jury had before it some evidence upon which it
could rationally conclude, beyond reasonable doubt, that appellant used or exhibited a
deadly weapon during his assault upon Mr. Stines.
Issue Two—Disproportionate Sentencing
Because appellant 1) sought probation upon being found guilty for engaging in
an accident resulting in personal injury and failing to render aid to those he injured, 2)
had not previously been convicted of any felonies, and 3) previously had engaged in a
prior unadjudicated misdemeanor offense for driving while intoxicated in 2009, the ten
year prison sentence levied was grossly disproportionate to the crime and violative of
the United States and Texas Constitutions, or so he believes. The sentence was the
maximum allowed for committing the third degree felony for which he was convicted.
Assuming, arguendo, that the contention was preserved for review even though not
raised below, compare Garza v. State, 435 S.W.3d 258 (Tex. Crim. App. 2014)
(indicating that Garza’s Eighth Amendment claim was not forfeited by his failure to urge
his claim in the trial court) and Curry v. State, 910 S.W.2d 490, 497 (Tex. Crim. App.
1995) (stating that the failure to object that the sentence constitutes cruel and unusual
punishment waives error), we nonetheless overrule it.
The Eighth Amendment of the United States Constitution prohibits excessive bail
or fines as well as cruel and unusual punishment. See U.S. Const. Amend. VIII. The
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In The Court of Appeals Seventh District of Texas at Amarillo
Nos. 07-14-00286-CR 07-14-00287-CR
SAMUEL FUENTE ORTEZ, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
On Appeal from the 40th District Court Ellis County, Texas Trial Court Nos. 37,162CR & 38,598CR, Honorable Bob Carroll, Presiding
December 5, 2014
MEMORANDUM OPINION Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.
Samuel Fuente Ortez, appellant, appeals his convictions for aggravated assault
with a deadly weapon1 and “accident involving personal injury.”2 The prison sentences
1 The State alleged, via indictment, that appellant did “then and there intentionally, knowingly, or recklessly cause bodily injury to Michael Stines by driving his vehicle on the wrong side of the road causing a head-on collision with the vehicle Michael Stines was riding in, and the defendant did then and there use or exhibit a deadly weapon, to-wit: a motor vehicle, during the commission of said assault.” 2 Regarding the latter offense, the State alleged, via indictment, that appellant did “then and there intentionally or knowingly drive a vehicle that became involved in an accident resulting in serious bodily injury to Lynn Stines and the said defendant did thereafter, knowing said accident had occurred, intentionally or knowingly fail to render to Lynn Stines reasonable assistance when it was then apparent that Lynn Stines was in need of medical treatment.” The crime is found at sections 550.021 and 550.023 of the Texas Motor Vehicle Code. levied for each were fifteen and ten years, respectively. Appellant attacks his conviction
for aggravated assault by contending that the evidence was insufficient to prove the use
or exhibition of a deadly weapon during the crime. Regarding his other conviction, he
believes that the punishment assessed was “grossly disproportionate to the crime
charged and to the offender's personal circumstance.” We affirm.
Background
After spending a day drinking numerous cans of beer, appellant entered a car
with an acquaintance, began driving down the road, crossed into the lane of on-coming
traffic, and remained there for twenty to thirty seconds until colliding head-on with
another vehicle moving in the opposite direction. The two individuals in the vehicle
struck by appellant (that is, Mr. and Mrs. Stines) were severely injured, could be heard
moaning, and required extensive medical treatment. The passenger riding with
appellant also suffered injuries, though not to the same extent as the Stines. Despite
his involvement in the collision and presence of three injured people at the accident
scene, appellant exited the car he drove and walked away.
Appellant does not dispute that he intentionally, knowingly or recklessly caused
others to suffer serious bodily injury. Nor does he deny leaving the scene of an
accident in which he was involved without rendering aid to or securing help for anyone.
Issue One—Sufficiency of the Evidence
As previously mentioned, appellant believes that no evidence appears of record
upon which the fact finder could conclude, beyond reasonable doubt, that he used or
exhibited a deadly weapon when assaulting Mr. Stines with a car. We overrule the
issue.
2 The pertinent standard of review is well known and needs no discussion. It is
enough to simply refer the litigants to Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct.
2781, 61 L.Ed.2d 560 (1979) and Brooks v. State, 323 S.W.3d 893, 899 (Tex. Crim.
App. 2010) for its discussion.
Next, section 22.01 of the Texas Penal Code states that a person commits
assault if he "intentionally, knowingly, or recklessly causes bodily injury to another."
TEX. PENAL CODE ANN. § 22.01(a)(1) (West Supp. 2014). One commits aggravated
assault by intentionally, knowingly, or recklessly causing bodily injury to another and
"uses or exhibits a deadly weapon during the commission of the assault." Id. §
22.02(a)(2). As can be seen, a distinguishing feature between the two crimes is the use
or exhibition of a deadly weapon. Statute defines the latter as "anything that in the
manner of its use or intended use is capable of causing death or serious bodily injury."
Id. § 1.07(a)(17)(B); Gordon v. State, 173 S.W.3d 870, 873 (Tex. App.—Fort Worth
2005, no pet.); Dotson v. State, 146 S.W.3d 285, 299 (Tex. App.—Fort Worth 2004,
pet. ref'd). That a motor vehicle or car can be a deadly weapon is beyond dispute. See
e.g., Tyra v. State, 897 S.W.2d 796, 798 (Tex. Crim. App. 1995) (wherein a motor
vehicle was found to constitute a deadly weapon). And, for a car to be such, the driver
need not use or exhibit it with the intent to achieve a specific purpose. As explained by
our Court of Criminal Appeals in Walker v. State, 897 S.W.2d 812 (Tex. Crim. App.
1995), "it is evident that not all deadly weapons need be used with an intent to achieve
a specific purpose”; so, where the purported deadly weapon is an automobile, the State
may obtain an affirmative finding without having to prove that the accused intended to
use the vehicle as a weapon. Id. at 814.
3 Here, an officer testified that motor vehicles have caused death and that they
could be considered a deadly weapon. Moreover, as depicted in the record at bar,
driving a vehicle into another car may and actually did cause individuals to suffer
serious bodily injury. Given this, the jury had before it some evidence upon which it
could rationally conclude, beyond reasonable doubt, that appellant used or exhibited a
deadly weapon during his assault upon Mr. Stines.
Issue Two—Disproportionate Sentencing
Because appellant 1) sought probation upon being found guilty for engaging in
an accident resulting in personal injury and failing to render aid to those he injured, 2)
had not previously been convicted of any felonies, and 3) previously had engaged in a
prior unadjudicated misdemeanor offense for driving while intoxicated in 2009, the ten
year prison sentence levied was grossly disproportionate to the crime and violative of
the United States and Texas Constitutions, or so he believes. The sentence was the
maximum allowed for committing the third degree felony for which he was convicted.
Assuming, arguendo, that the contention was preserved for review even though not
raised below, compare Garza v. State, 435 S.W.3d 258 (Tex. Crim. App. 2014)
(indicating that Garza’s Eighth Amendment claim was not forfeited by his failure to urge
his claim in the trial court) and Curry v. State, 910 S.W.2d 490, 497 (Tex. Crim. App.
1995) (stating that the failure to object that the sentence constitutes cruel and unusual
punishment waives error), we nonetheless overrule it.
The Eighth Amendment of the United States Constitution prohibits excessive bail
or fines as well as cruel and unusual punishment. See U.S. Const. Amend. VIII. The
provision is applicable to the states through the Fourteenth Amendment; Furman v.
Georgia, 408 U.S. 238, 239, 92 S.Ct. 2726, 2727, 33 L.Ed.2d 346 (1972); Robinson v.
4 California, 370 U.S. 660, 666-67, 82 S.Ct. 1417, 1420-21, 8 L.Ed.2d 758 (1962), and
flows from the basic “‘precept of justice that punishment for crime should be graduated
and proportioned to the offense.’” Atkins v. Virginia, 536 U.S. 304, 311, 122 S.Ct. 2242,
2246, 153 L.Ed.2d 335 (2002), quoting Weems v. United States, 217 U.S. 349, 367, 30
S.Ct. 544, 549, 54 L.Ed. 793 (1910).
It is undisputed that the sentence imposed by the trial court was within the range
of punishment authorized by the Legislature. Furthermore, Texas courts have
traditionally held that punishment assessed within the range set by the Legislature is not
excessive, cruel, or unusual. E.g., Price v. State, 35 S.W.3d 136, 144 (Tex. App.—
Waco 2000, pet. ref’d); Winchester v. State, 246 S.W.3d 386, 388 (Tex. App.—Amarillo
2008, pet. ref’d); Delacruz v. State, 167 S.W.3d 904, 906 (Tex. App.—Texarkana 2005,
no pet.). Nevertheless, appellant suggests that his claim of gross disproportionality is
independent of that analysis and survives such proof. So too does he cite authority to
support his proposition. See e.g., Puga v. State, 916 S.W.2d 547, 548 (Tex. App.—San
Antonio 1996, no pet.) (stating that the Eighth Amendment encompasses a narrow
proportionality principle and a state criminal sentence must be proportionate to the
crime for which the defendant has been convicted); see also Winchester v. State, 246
S.W.3d at 388-89 (stating that Texas courts recognize that a prohibition against grossly
disproportionate sentences survives under the federal constitution apart from any
consideration whether the punishment assessed is within the statute's range). His
authority further states the proportionality analysis is guided by objective criteria such as
the gravity of the offense, the harshness of the penalty, the sentences imposed on other
criminals in the same jurisdiction, and the sentences imposed for the commission of the
same crime in other jurisdictions. Puga v. State, 916 S.W.2d at 548-49, quoting Solem
5 v. Helm, 463 U.S. 277, 290, 103 S.Ct. 3001, 3009, 77 L.Ed.2d 637 (1983); see
Winchester v. State, 246 S.W.3d at 389 (stating that a court first compares the gravity of
the offense to the severity of the sentence and only if the court infers the sentence is
grossly disproportionate to the offense should the court then consider the remaining
factors in the Solem test). With this in mind we turn to the record before us.
As previously mentioned, the sentence fell within the range of punishment
mandated by statute; consequently, the people of Texas (as reflected through the vote
of the Legislature) considered the punishment appropriate. Furthermore, appellant did
not simply involve himself in simple negligence. Again, he does not deny intentionally,
knowingly or recklessly causing serious bodily injury to those victimized by his driving.
That he had ingested numerous alcoholic beverages before entering his car and that
this was not the first time he engaged in driving after drinking alcoholic beverages is
also illustrated by the record. Nor can we ignore the evidence of his driving in the
wrong lane for almost half a minute; that hardly depicts a momentary lapse in judgment
or attention. And, most importantly, while his victims could be heard moaning from their
injuries, appellant just walked away. Finally, he cites us to no evidence describing the
measure of punishment levied in like cases.
Simply because appellant may have qualified for probation and not previously
been convicted of a felony does not mean the ten year sentence levied under the
circumstances before us was grossly disproportionate or offensive to either the Texas or
United States Constitution. To use the vernacular proffered by appellant, the
“punishment fit both the crime and the offender,” or so a rational fact finder concluded,
and we cannot hold otherwise under the law or record.
6 Accordingly, we affirm the judgments of the trial court.
Brian Quinn Chief Justice
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