|
|
|
|
Opinion filed April 13, 2006
In The
Eleventh Court of Appeals
____________
No. 11-05-00008-CR
__________
GUADALUPE MARTINEZ RODRIGUEZ, Appellant
V.
STATE OF TEXAS, Appellee
On Appeal from the 385th District Court
Midland County, Texas
Trial Court Cause No. CR29023
O P I N I O N
The jury convicted Guadalupe Martinez Rodriguez of the offense of burglary of a habitation, a second degree felony. The trial court assessed punishment at confinement for ten years, but the court suspended the imposition of the sentence and placed appellant on community supervision for eight years. We affirm.
In his sole issue on appeal, appellant contends that the statute under which he was convicted is unconstitutional as applied to him because the punishment provided for in that statute is Awholly disproportionate to the crime@ and constitutes cruel and unusual punishment in this case. Appellant specifically argues that his conviction for a second degree felony under Tex. Pen. Code Ann. ' 30.02 (Vernon 2003) is unconstitutional because the offense can be broken down into two misdemeanors C criminal trespass and simple assault C whose punishment range combined would not exceed the minimum punishment for a second degree felony. See Tex. Pen. Code Ann. ' 12.21 (Vernon 2003), '' 22.01, 30.05 (Vernon Supp. 2005).
Appellant was charged with and convicted of entering the habitation of Mauro Sustaita without consent and, while therein, committing or attempting to commit an assault. This offense is a second degree felony. Section 30.02(a)(3), (c)(2). Under the circumstances of this case, each of the underlying offenses would have been a Class A misdemeanor with a maximum punishment of confinement in jail for one year and a fine of $4,000. Section 12.21. A second degree felony, however, carries a punishment range of imprisonment in the institutional division for a term of not less than two years or more than twenty years plus an optional fine not to exceed $10,000. Tex. Pen. Code Ann. ' 12.33 (Vernon 2003).
We hold that the trial court did not err in upholding the constitutionality of Section 30.02 as applied in this case. The offense that appellant committed falls directly within the provisions of Section 30.02. Section 30.02(a)(3) provides that a person commits the offense of burglary if, without the effective consent of the owner, the person enters a building or habitation and commits or attempts to commit a felony, a theft, or an assault. Section 30.02(c)(2) provides that the offense is a felony of the second degree if committed in a habitation. Although appellant=s offense, like most others, can be broken down into lesser offenses, the offense as a whole is nonetheless a second degree felony as provided for by the legislature.
Neither the Eighth Amendment nor any other provision of the U.S. or Texas Constitution mandates the enactment of a particular punishment for a particular crime. Arnold v. State, 873 S.W.2d 27, 39 (Tex. Crim. App. 1993). Such determinations are generally left to the exercise of the judgment of democratically elected legislatures. Id. The Texas Legislature has established a range of punishment for the offense of burglary of a habitation, and that punishment is not disproportionate to the crime when the offense is considered as a whole.
Appellant did not commit a simple trespass or assault. His actions were more serious and illustrate why he faced more serious potential consequences. Appellant was convicted of breaking into Sustaita=s home during the night while it was occupied by Sustaita and appellant=s former girlfriend, assaulting his former girlfriend by hitting her in the head and back, and then wrestling with Sustaita until Sustaita threw appellant out of the house. Because appellant=s probated sentence was not grossly disproportionate to his crime and was within the statutory limits, appellant=s punishment does not constitute cruel and unusual punishment. See Bradfield v. State, 42 S.W.3d 350, 353-54 (Tex. App.CEastland 2001, pet ref=d)(the Eighth Amendment requires a comparison of the gravity of the offense with the severity of the punishment); see also Harmelin v. Michigan, 501 U.S. 957, 962-86 (1991)(discussing the history of the Eighth Amendment). Appellant=s issue is overruled.
The judgment of the trial court is affirmed.
RICK STRANGE
JUSTICE
April 13, 2006
Do not publish. See Tex. R. App. P. 47.2(b).
Panel consists of: Wright, C.J., and
McCall, J., and Strange, J.