Opinion issued April 24, 2008
In The
Court of Appeals
For The
First District of Texas
NO. 01-07-00045-CR
ANTHONY FLORES, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 149th District Court
Brazoria County, Texas
Trial Court Cause No. 46,951
MEMORANDUM OPINION
Following a non-jury trial, the trial court convicted appellant of aggravated sexual assault of a child. After finding that appellant had prior convictions for aggravated sexual assault of a child and indecency with a child, the trial court imposed a sentence of life imprisonment, as mandated by the version of subsection 12.42(c)(2) applicable to his offense. In his first issue, appellant asserts that the trial court erred in failing to grant his motion to quash the indictment. In 10 remaining issues, appellant argues that former subsection 12.42(c)(2)’s mandatory life sentence violated his right to due process, freedom from cruel and unusual punishment, equal protection, and trial by jury under the federal and state constitutions. We affirm.
Background
Appellant was charged with having committed aggravated sexual assault of a child on or about February 7, 2004. The indictment also included two enchantment paragraphs, stating that appellant had been previously convicted of aggravated sexual assault of a child and indecency with a child. After waiving his right to a jury trial, appellant filed a pre-trial motion to quash the indictment, which the trial court denied. Following trial, appellant was convicted as charged. At punishment, the trial court found the enhancement paragraphs to be true. Because appellant was convicted for aggravated sexual assault of a child and had previous convictions for aggravated sexual assault of a child and indecency with a child, the trial court imposed the statutorily-mandated sentence of life imprisonment. See Act of May 23, 1997, 75th Leg., R.S., ch. 665, § 1, 1997 Tex. Gen. Laws 2247, 2247–48 (amended 2007). Under this punishment, appellant is not eligible for parole until time served equals 35 years. Appellant now appeals.
Failure to Quash Indictment
In his first issue, appellant argues that the trial court committed reversible error by failing to grant his motion to quash the indictment, because the State did not give him written notice of which enhancement provision it would be relying upon at punishmentthe general enhancement under former subsection 12.42(c)(1) or the mandatory life imprisonment under former subsection 12.42(c)(2). The adequacy of an indictment is a question of law, which we review de novo. Mungin v. State, 192 S.W.3d 793, 794 (Tex. App.—Houston [1st Dist.] 2006, no pet.).
Here, appellant directs us to no caselaw or statute mandating that the State provide a defendant with notice of which enhancement provision it intends to rely upon at punishment. We conclude that the trial court did not err in failing to grant appellant’s motion to quash the indictment.
We overrule appellant’s first issue.
Constitutionality of Mandatory Life Sentence
In 10 issues, appellant challenges the constitutionality of former subsection 12.42(c)(2) under both the United States and Texas Constitutions. While appellant asserts his federal and state constitutional issues separately, in no issue does he provide authority suggesting that the Texas Constitution provides greater rights than the United States Constitution; therefore, we consider his challenges to both constitutions together. See Cobb v. State, 85 S.W.3d 258, 267–68 (Tex. Crim. App. 2002).
Cruel and Unusual Punishment
In his fourth and fifth issues, appellant asserts that former subsection 12.42(c)(2) is unconstitutional because it violates his right to be free from cruel and unusual punishment under the Eighth and Fourteenth Amendments of the United States Constitution and article I, section 13 of the Texas Constitution. U.S. Const. amends. VIII, XIV; Tex. Const. art. I, § 13. In support of these issues, appellant contends that the trial court, after it found the enhancement paragraphs true, was unable to consider any mitigating evidence, and the mandatory life sentence imposed is “grossly disproportionate” to the aggravated sexual assault he committed, particularly in light of his parole ineligibility for 35 years.
The State need not treat an accused charged under a recidivist statute in the same manner as one charged as a first-time offender. See Rummel v. Estelle, 445 U.S. 263, 284, 100 S. Ct. 1133, 1144 (1980); Smallwood v. State, 827 S.W.2d 34, 38 (Tex. App.—Houston [1st Dist.] 1992, pet. ref’d). The Eighth Amendment does not require strict proportionality between the crime and 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, 1186–87 (2003) (plurality opinion). 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, 1173 (2003). In determining whether the sentence is grossly disproportionate, we first address the gravity of the offense compared to the harshness of the penalty. Ewing, 538 U.S. at 28, 123 S. Ct. at 1189. In doing so, we consider not only the present offense, but also the defendant’s criminal history. See Smallwood, 827 S.W.2d at 38.
Aggravated sexual assault of child is a first-degree felony in Texas, with a punishment of life imprisonment or a punishment range of five to 99 years imprisonment. Because the mandatory life sentence imposed pursuant to former subsection 12.42(c)(2) was within the range of punishment for appellant’s offense, his punishment was not grossly disproportionate to his offense. See McNew v. State, 608 S.W.2d 166, 174 (Tex. Crim. App. 1978) (noting that, where the punishment assessed is within the limits prescribed by statute, the punishment is not cruel and unusual within the state constitutional prohibition). We hold that appellant’s mandatory life sentence did not violate constitutional prohibitions against cruel and unusual punishment.
We overrule appellant’s fourth and fifth issues.
No Notice
In his second and third issues, appellant asserts that former subsection 12.42(c)(2) caused the violation of his right to due process, because it did not require the State to provide him with any notice that it intended to seek a mandatory life sentence based on his prior convictions. Appellant argues that he should have been afforded notice of what type of punishment the State intended to seek.
Assuming, without deciding, that appellant was entitled to such notice, the indictment charged appellant with aggravated sexual assault, and asserted that he had previously been convicted of aggravated sexual assault and indecency with a child. Under former subsection 12.42(c)(2), a defendant, previously convicted of one of several sexual offenses, including aggravated sexual assault and indecency with a child, shall receive a life sentence upon conviction of one of several sexual offenses, including aggravated sexual assault. Act of May 23, 1997, 75th Leg., R.S., ch. 665, § 1, 1997 Tex. Gen. Laws 2247, 2247–48 (amended 2007). Therefore, we conclude that appellant had constructive notice that he would receive a life sentence if he were convicted of aggravated sexual assault of a child and one of the enhancement paragraphs was found true. Cf. Moore v. State, 969 S.W.2d 4, 13 (Tex. Crim. App. 1998) (determining that a capital murder indictment gives the defendant notice that the special issues under article 37.071 of the Code of Criminal Procedure will be raised).
We overrule appellant’s second and third issues.
Inability to Present Mitigating Evidence
In his sixth and seventh issues, appellant argues that former subsection 12.42(c)(2)’s mandatory life sentence violated his right to due process, because it precluded consideration of any mitigating evidence. However, it is well-settled that there is no constitutional guarantee to individualized sentencing in non-capital cases. See Lockett v. Ohio, 438 U.S. 586, 602, 98 S. Ct. 2954, 2963 (1978). Therefore, because appellant had no constitutional right to present mitigating evidence prior to sentencing, no due process violation occurred. Id.
We overrule appellant’s sixth and seventh issues.
Equal Protection
In his eighth and ninth issues, appellant argues that his equal protection rights under the Fourteenth Amendment of the United States Constitution and article I, section 3 of the Texas Constitution were violated by former subsection 12.42(c)(2)’s mandatory life sentence. U.S. Const. amend. XIV; Tex. Const. art. I, § 3. Specifically, appellant contends that the former subsection’s sentencing scheme gave rise to “unreasonable classifications.” He correctly points out that, at the time of his offense, a person with a prior conviction of indecency with a child, who is convicted of aggravated sexual assault, receives a mandatory life sentence. In contrast, a person with a prior conviction of aggravated sexual assault, who is convicted of indecency with a child, does not receive a mandatory life sentence. See Act of May 23, 1997, 75th Leg., R.S., ch. 665, § 1, 1997 Tex. Gen. Laws 2247, 2247–48 (amended 2007). Similarly, appellant contends that the Penal Code only imposes the mandatory life sentence on sex offenders, but not on other non-sex offenders, including murderers.
Appellant asserts that the mandatory life sentence he received involves a fundamental liberty interest that requires us to review the subsection with strict scrutiny. However, equal protection demands a rational basis for legislatively created classifications creating punishment schemes for criminal offenses. See Smith v. State, 737 S.W.2d 933, 938–39 (Tex. App.—Dallas 1987, pet. ref’d). Therefore, the test is whether section 12.42(c)(2)’s mandatory life sentence is rationally related to a legitimate state interest. See City of Cleburne v. Cleburne Living Center, 473 U.S. 432, 440, 105 S. Ct. 3249, 3254 (1985). The burden of proving the lack of a rational basis for a statute falls on the challenger, who must also show that similarly situated individuals were treated differently. See Smith v. State, 898 S.W.2d 838, 847 (Tex. Crim. App. 1995).
Assuming that former subsection 12.42(c)(2) treated similarly situated classes of convicted persons differently, appellant has failed to show how punishing certain sexual offense recidivists differently than other recidivists is not rationally related to the legitimate government interest of protecting society from habitual sexual offenders. The reprehensibleness of specific sexual offenses as compared to other types of sexual and non-sexual offenses is a determination for the legislature. Cf. Collins v. Johnston, 237 U.S. 502, 510, 35 S. Ct. 649, 653 (1915) (“[I]t is hardly necessary to say that the comparative gravity of criminal offenses, and whether their consequences are more or less injurious, are matters for the state itself to determine”). And, while a person with a prior conviction of indecency with a child, who is convicted of aggravated sexual assault, has committed the same crimes as a person with a prior conviction of aggravated sexual assault, who is convicted of indecency with a child, the order in which a person commits sexual offenses is likewise a consideration the legislature may look at when determining the seriousness of recidivism. Cf. Rummel v. Estelle, 445 U.S. 263, 284–285, 100 S. Ct. 1133, 1145 (1980) (“[T]he point at which a recidivist will be deemed to have demonstrated the necessary propensities and the amount of time that the recidivist will be isolated from society are matters largely within the discretion of the punishing jurisdiction.”). Therefore, we hold that former subsection 12.42(c)(2) was not in violation of equal protection guarantees.
We overrule appellant’s eighth and ninth issues.
Right to Trial by Jury
In his tenth and eleventh issues, appellant asserts that former subsection 12.42(c)(2)’s automatic life sentence violated his right to trial by jury under the Sixth and Fourteenth Amendments of the United States Constitution and article I, sections 10 and 15 of the Texas Constitution. U.S. Const. amends. VI, XIV; Tex. Const. art. I, §§ 10, 15. However, it is well established that the right to a jury trial under both federal and state constitutions does not encompass the right to have the jury assess punishment. See Barrow v. State, 207 S.W.3d 377, 380 (Tex. Crim. App. 2006).
We overrule appellant’s tenth and eleventh issues.
Conclusion
We affirm the trial court’s judgment.
George C. Hanks, Jr.
Justice
Panel consists of Justices Nuchia, Hanks, and Higley.
Do not publish. Tex. R. App. P. 47.2(b)