ACCEPTED 13-14-00271-CR THIRTEENTH COURT OF APPEALS CORPUS CHRISTI, TEXAS 12/10/2015 11:26:22 AM Dorian E. Ramirez CLERK
No. 13-14-271-CR
IN THE COURT OF APPEALS FILED IN 13th COURT OF APPEALS FOR THE THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI/EDINBURG, TEXAS AT CORPUS CHRISTI 12/10/2015 11:26:22 AM DORIAN E. RAMIREZ Clerk
VICTOR CAMPOS, APPELLANT,
v.
THE STATE OF TEXAS, APPELLEE.
ON APPEAL FROM THE 148TH DISTRICT COURT NUECES COUNTY, TEXAS
BRIEF FOR THE STATE
Douglas K. Norman State Bar No. 15078900 Assistant District Attorney 105th Judicial District of Texas 901 Leopard, Room 206 Corpus Christi, Texas 78401 (361) 888-0410 (361) 888-0399 (fax) douglas.norman@nuecesco.com
Attorney for Appellee
ORAL ARGUMENT IS REQUESTED TABLE OF CONTENTS
INDEX OF AUTHORITIES .......................................................................... ii
SUMMARY OF THE ARGUMENT ..............................................................1
ARGUMENT ...................................................................................................1
Reply Point Campos’ forty-five-year sentence did not violate the Eighth Amendment. ...................................................................................................1
I. Waiver. ..............................................................................................1 II. Statement of Facts. .........................................................................3 III. Proportionality Review. ...............................................................5 IV. Gravity of the Offense. .................................................................6 V. Harshness of the Sentence..............................................................7
PRAYER ..........................................................................................................9
RULE 9.4 (i) CERTIFICATION .....................................................................9
CERTIFICATE OF SERVICE ..................................................................... 10 INDEX OF AUTHORITIES
Cases
Emerson v. State, 880 S.W.2d 759 (Tex. Crim. App. 1994), ..........................8
Ewing v. California, 538 U.S. 11, 123 S.Ct. 1179 (2003). ..............................5
In re Graves, 217 S.W.3d 744 (Tex. App.—Waco 2007, no pet.). .................8
Guthrie-Nail v. State, ---S.W.3d---, PD-0125-14, 2015 WL 5449642 (Tex. Crim. App., September 16, 2015, rehearing granted November 18, 2015). ..7
Harmelin v. Michigan, 501 U.S. 957, 111 S.Ct. 2680 (1991). ........................5
Harris v. State, 656 S.W.2d 481 (Tex. Crim. App. 1983). ..............................5
Jordan v. State, 495 S.W.2d 949 (Tex. Crim. App. 1973). .............................5
Lankston v. State, 827 S.W.2d 907 (Tex. Crim. App. 1992). ..........................2
Lockyer v. Andrade, 538 U.S. 63, 123 S.Ct. 1166 (2003). ..............................5
McGruder v. Puckett, 954 F.2d 313 (5th Cir. 1992). ......................................6
Moore v. State, 54 S.W.3d 529 (Tex. App.-Fort Worth 2001, pet. ref'd). ......6
Noland v. State, 264 S.W.3d 144 (Tex. App.-Houston [1st Dist.] 2007, pet. ref'd). ................................................................................................................1
Resendez v. State, 306 S.W.3d 308 (Tex. Crim. App. 2009). .........................2
Reyna v. State, 168 S.W.3d 173 (Tex. Crim. App. 2005). ..............................2
Samuel v. State, 477 S.W.2d 611 (Tex. Crim. App. 1972)..............................5
Solem v. Helm, 463 U.S. 277, 103 S.Ct. 3001 (1983). ............................... 6, 8
Sullivan v. State, 975 S.W.2d 755 (Tex. App.-Corpus Christi 1998, no pet.). ....................................................................................................... 6, 8
ii Trevino v. State, 174 S.W.3d 925 (Tex. App.-Corpus Christi 2005, pet. ref'd). ................................................................................................... 2, 5, 6, 8 Statutes & Rules Tex. Penal Code § 12.32. .................................................................................7
Tex. Penal Code § 30.02. .................................................................................3
Tex. R. App. P. 33.1. .......................................................................................2
1 Steven Goode et al., Guide to the Texas Rules of Evidence § 201.2 (3d ed.2002). ........................................................................................................8
iii NO. 13-14-271-CR
VICTOR CAMPOS, § COURT OF APPEALS Appellant, § § V. § FOR THE THIRTEENTH § THE STATE OF TEXAS, § Appellee. § DISTRICT OF TEXAS
TO THE HONORABLE COURT OF APPEALS:
SUMMARY OF THE ARGUMENT
Campos waived his Eighth Amendment complaint by failing to raise it
in the trial court. Alternatively, his forty-five-year sentence was not
disproportionate or excessive considering the nature and circumstances of
the present burglary and armed robbery.
ARGUMENT
Reply Point Campos’ forty-five-year sentence did not violate the Eighth Amendment.
I. Waiver.
When the sentence imposed is within the punishment range and is not
illegal, the failure to specifically object to an allegedly disproportionate
sentence in the trial court or in a post-trial motion waives any error on
appeal. Noland v. State, 264 S.W.3d 144, 151 (Tex. App.-Houston [1st Dist.] 2007, pet. ref'd); Trevino v. State, 174 S.W.3d 925, 927-28 (Tex.
App.-Corpus Christi 2005, pet. ref'd); TEX. R. APP. P. 33.1(a).
In the present case, when the trial court sentenced Campos to forty-
five years in prison, he objected only, “I don’t think I deserve that much
time.” (RR vol. 1, p. 51) A complaint that he did not “deserve” his sentence
does not equate to a complaint that his sentence was constitutionally
disproportionate or excessive. This was clearly insufficient to bring to the
trial judge’s attention the constitutional claim that Campos raises on appeal.
See Reyna v. State, 168 S.W.3d 173, 179 (Tex. Crim. App. 2005) (requiring
the defendant to bring to the trial court’s attention the constitutional claim he
raises on appeal); see also Resendez v. State, 306 S.W.3d 308, 312 (Tex.
Crim. App. 2009) (discussing Rule 33.1(a) and stating that “a party must be
specific enough so as to ‘let the trial judge know what he wants, why he
thinks himself entitled to it, and 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,’” (quoting Lankston v. State, 827 S.W.2d 907, 909 (Tex.
Crim. App. 1992))).
Nor does the record show that Campos filed a motion for new trial or
otherwise raised an Eighth Amendment complaint about his sentence prior
to the present ground on appeal. Accordingly, Campos waived error on his
2 present claim that his sentence was excessive or disproportionate under the
Eighth Amendment.
However, even if he had preserved error, he fails to prove his claim.
II. Statement of Facts.
Victor Campos was indicted for the First Degree Felony of Burglary
of a Habitation with the commission or attempted commission of Robbery.
(CR p. 5)1
Campos judicially confessed and stipulated to facts contained in
attached exhibits (CR p. 68) showing, among other things, that he pulled and
cocked a gun during his encounter with the victim and her young daughter
(CR p. 70), that he was eventually arrested with property stolen from the
residence as well as marijuana and crack cocaine (CR p. 87), and that he was
belligerent and resisted officers when he was found and arrested shortly after
the burglary. (CR p. 94)
At the original plea hearing, the victim, Leslie Espinosa, testified that
Campos and a couple others broke into her home and Campos held a gun in
his hand as he demanded money from her in the presence of her young
daughter, who was pleading with Campos not to kill her mom. (Supp. RR
1 A person commits First Degree Burglary of a Habitation if, without the consent of the owner, he enters a habitation and commits or attempts to commit a felony other than theft. See Tex. Penal Code § 30.02 (a)(3) & (d). 3 vol. 2, p. 15) The victim testified that Campos then cocked the gun and
pointed it at her daughter, telling Espinosa to “shut her up.” (Supp. RR vol.
2, p. 15)
Campos testified on his own behalf, claiming that he was drunk and
high on drugs at the time of the burglary. (Supp. RR vol. 2, p. 23) Campos
also admitted that he had been arrested only a week before for terroristic
threat (Supp. RR vol. 2, pp. 25-26), that generally he had been using drugs at
the time of the offense (Supp. RR vol. 2, p. 27), and that he had given drugs
to one of his accomplices to secure his participation in the burglary. (Supp.
RR vol. 2, pp. 28 & 30)
At a subsequent sentencing hearing before a separate judge, assigned
to the case after the original judge recused himself, Espinosa again testified
to the same events as before, including Campos’ pointing a gun at her
daughter and telling Espinosa to shut her up. (RR vol. 1, p. 12) Espinosa
also related that she was six months pregnant at the time of the burglary.
(RR vol. 1, p. 13)
Campos again testified that he was drunk and on drugs at the time.
(RR vol. 1, p. 19) Campos also testified that he smoked marijuana and was
taking a lot of pills. (RR vol. 1, p. 22) Campos admitted that, when arrested
shortly after the burglary, cocaine and marijuana were found on him. (RR
4 vol. 1, p. 25) Campos also admitted that he had been selling drugs. (RR vol.
1, p. 31)
The written judgment reflects that Campos was convicted on his
guilty plea and sentenced to 45 years in prison. (CR p. 106)
III. Proportionality Review.
The Eighth Amendment to the United States Constitution does not
require strict proportionality between the crime and the sentence; rather, it
forbids extreme sentences that are grossly disproportionate to the crime.
Ewing v. California, 538 U.S. 11, 23, 123 S.Ct. 1179, 155 L.Ed.2d 108
(2003). The precise contours of the grossly disproportionate standard are
unclear, but it applies only in exceedingly rare and extreme cases. See
Lockyer v. Andrade, 538 U.S. 63, 73, 123 S.Ct. 1166, 155 L.Ed.2d 144
(2003).
Generally, punishment which falls within the limits prescribed by a
valid statute is not excessive, cruel, or unusual. Trevino, 174 S.W.3d at 928
(citing Harris v. State, 656 S.W.2d 481, 486 (Tex. Crim. App. 1983) (en
banc); Jordan v. State, 495 S.W.2d 949, 952 (Tex. Crim. App. 1973);
Samuel v. State, 477 S.W.2d 611, 614 (Tex. Crim. App. 1972)).
Proportionality review of a legal sentence remains somewhat
ambiguous and uncertain. See Harmelin v. Michigan, 501 U.S. 957, 111
5 S.Ct. 2680 (1991); Solem v. Helm, 463 U.S. 277, 291, 103 S.Ct. 3001
(1983); Trevino, 174 S.W.3d at 928; Sullivan v. State, 975 S.W.2d 755, 757-
58 (Tex. App.-Corpus Christi 1998, no pet.). However, to the extent that
such review remains viable, the appellate court should look first to the
gravity of the offense and the harshness of the penalty. See Solem, 463 U.S.
at 290; McGruder v. Puckett, 954 F.2d 313, 316 (5th Cir. 1992). If, based
on his present conviction, his criminal history, and the punishment range
available, appellant's sentence is not grossly disproportionate to his crime,
this ends the analysis in the absence of other evidence in the appellate record
of the sentences imposed for other crimes in Texas or for the same crime in
other jurisdictions upon which a comparative evaluation might be based.
See Solem, 463 U.S. at 292; McGruder, 954 F.2d at 316; Sullivan, 975
S.W.2d at 757-58.
IV. Gravity of the Offense.
The gravity of the offense is judged in light of the harm caused or
threatened to society and the offender's culpability. Moore v. State, 54
S.W.3d 529, 542 (Tex. App.-Fort Worth 2001, pet. ref'd) (citing Solem, 463
U.S. at 291-92).
In the present case, the evidence shows that Campos broke into the
victim’s home and cocked and pointed a gun at her young child in the course
6 of robbing her, whether or not the trial court exercised its discretionary
authority in making a finding in the written judgment that he used a deadly
weapon. See Guthrie-Nail v. State, ---S.W.3d---, PD-0125-14, 2015 WL
5449642 (Tex. Crim. App., September 16, 2015, rehearing granted
November 18, 2015) (suggesting that the trial judge has discretion to decline
to make a deadly weapon finding even when use of a deadly weapon is an
element of the offense). Lack of a deadly weapon finding does not erase this
evidence or the effect it may have on punishment. In addition, the evidence
showed that Campos arranged the burglary and paid another person with
drugs to assist him, that Campos was using and selling drugs at the time, and
that he was abusive with the police when arrested shortly after the crime.
Accordingly, the gravity of the offense and the circumstances justified
a stiff punishment.
V. Harshness of the Sentence.
The present forty-five-year sentence was clearly less than the
maximum life sentence, See Tex. Penal Code § 12.32 (a), and is not so harsh
as to be grossly disproportionate, in view of both the seriousness of the
offense and the circumstances of the present case. Accordingly, Campos has
failed to make even a threshold showing that his sentence was grossly
disproportionate.
7 Moreover, because Campos failed to present any evidence in the trial
court of sentences imposed for other similar crimes in Texas or for the same
crimes in other jurisdictions, that court had no data before it to enable it to
perform a comparative evaluation using the remaining Solem factors. See
Solem, 463 U.S. at 292; see also Sullivan, 975 S.W.2d at 757-58.
Likewise, the reviewing Court has no record evidence to perform such
an analysis and should not look beyond the appellate record to do so, as
Campos invites it to do. (Appellant’s Brief pp. 11-16) While this Court
may have some discretion to judicially notice facts that were not developed
below, see, e.g., Emerson v. State, 880 S.W.2d 759, 765 (Tex. Crim. App.
1994), such is generally regarded as the exception and not the rule and
requires a “high degree of indisputability.” In re Graves, 217 S.W.3d 744,
750-51 (Tex. App.—Waco 2007, no pet.) (citing 1 Steven Goode et al.,
Guide to the Texas Rules of Evidence § 201.2 (3d ed.2002)). Moreover, in
addition to the general rule of waiver discussed above, it would be especially
unfair to the trial court to fault it for failing to conduct a comparative
analysis on date that was not brought to its attention at sentencing or on
motion for new trial. In Trevino, this Court refused to consider sentences
imposed in other cases when no such evidence was submitted to the trial
court. Trevino, 174 S.W.3d at 928-29.
8 Campos has clearly failed to prove that his sentence was
disproportionate of excessive.
PRAYER
For the foregoing reasons, the State respectfully requests that the
judgment of the trial court be affirmed.
Respectfully submitted, Douglas K. Norman /s/ ___________________ Douglas K. Norman State Bar No. 15078900 Assistant District Attorney 105th Judicial District of Texas 901 Leopard, Room 206 Corpus Christi, Texas 78401 (361) 888-0410 (361) 888-0399 (fax) douglas.norman@nuecesco.com
RULE 9.4 (i) CERTIFICATION
In compliance with Texas Rule of Appellate Procedure 9.4(i)(3), I
certify that the number of words in this brief, excluding those matters listed
in Rule 9.4(i)(1), is 1,700.
Douglas K. Norman /s/ ___________________ Douglas K. Norman
9 CERTIFICATE OF SERVICE
This is to certify that a copy of this brief was e-mailed on December
10, 2015, to Appellant’s attorney, Ms. Celina Lopez Leon, at
celinamarielopez@gmail.com.
/s/Douglas K. Norman ___________________ Douglas K. Norman