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NUMBER 13-00-683-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI
MICHAEL GARCIA, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 24th District Court
of De Witt County, Texas.
O P I N I O N
Before Chief Justice Valdez and Justices Yañez and Castillo
Opinion by Justice Castillo
Appellant, Michael Garcia, pled nolo contendere, without a plea bargain, to the offense of burglary of a habitation,[1] enhanced with habitual felony offender paragraphs,[2] to which appellant pled true. The trial court sentenced appellant to sixty years in prison. From this conviction and sentence, Garcia appeals. Garcia raises six issues, complaining that: 1) the trial court improperly denied his request to restrict the State=s voir dire on punishment; 2) the trial court erred in denying trial counsel=s request to withdraw and allow appellant to employ counsel of his own choosing; 3) appellant was denied a Afair and impartial@ judge, rendering his conviction void; 4) appellant=s plea was involuntary because the trial court failed to admonish him about community supervision or deferred adjudication community supervision; 5) appellant was denied effective assistance of counsel; and 6) the trial court abused its discretion in assessing a sentence of sixty years confinement and such sentence amounted to Acruel and unusual punishment.@ We affirm.
Procedural History and Relevant Facts
Appellant=s case was set for a jury trial on October 23, 2000. On that same morning, but prior to the commencement of the jury trial, appellant filed a motion to restrict voir dire, asking the trial court to prohibit the State from questioning the venire panel members on their ability to consider punishment within the different ranges of punishment for the offense of burglary of a habitation, that same offense with a repeat felony offender enhancement, and that same offense with a habitual felony offender enhancement. The trial court denied the motion.
That day, appellant=s appointed trial counsel also filed a motion to withdraw as counsel and asked that another counsel be appointed. On the hearing on this motion, appellant did not request that another counsel be appointed, but asked that the trial court allow him to discharge his appointed counsel or allow counsel to withdraw so that appellant could hire his own counsel. The trial court denied the request to withdraw, announced that the case would proceed to trial that day, but informed appellant that he could hire his own counsel and that if he did, he should Abring him in@ and that would be Afine.@
The court then heard a motion in limine and took a recess.
Upon return from the recess, appellant, still with his appointed counsel, chose to waive his right to a jury trial, plead nolo contendere without a plea bargain, and have the court assess punishment. Appellant signed a judicial confession indicating that he was pleading nolo contendere, a plea memorandum (which included an attachment titled, AExhibit A,@ containing admonishments), and an application for a Aprobated sentence.@[3] The trial court made inquiries as to appellant=s understanding of the rights he was giving up and the voluntariness of his waivers, and after appellant acknowledged that he understood his rights and was waiving them voluntarily, the court went over the range of punishment with appellant. The judge then inquired as to the existence of a plea bargain, and being informed that there was none, asked appellant whether he was a citizen of the United States. After appellant answered yes to that question, the following exchange took place.
JUDGE: I presume this is not going to involve deferred adjudication or probation?
DEFENSE COUNSEL : Judge, he=s eligible for it.
JUDGE: Okay.
The judge then asked appellant what his plea was, and appellant responded that he was pleading nolo contendere. Appellant also pled true to each of the three enhancement paragraphs and acknowledged that he was entering his plea of nolo contendere freely, intelligently, knowingly and voluntarily.
The State offered into evidence the judicial confession, the plea memorandum, the sheriff=s, Texas Rangers= and Victoria Police Department=s reports related to the crime, two videotapes of appellant=s confession to the Texas Rangers, and two penitentiary packets.[4] Defense counsel responded, ANo objection@ to the offer of each of the State=s exhibits and they were admitted into evidence. The defense offered no evidence. The trial judge then accepted the plea of nolo contendere, reminded appellant that the court was not bound to follow any recommendations as to punishment, found appellant guilty, and set the matter down for a punishment hearing three days later.
At the punishment hearing, the State called three witnesses: the victim of the burglary, and two law enforcement agents. The victim spoke of the crime and its effect on her family and her, including the fear it induced and the heavy financial loss suffered. The first law enforcement agent, Deputy Carl Bowen of the DeWitt County Sheriff=s Office, testified about a letter that appellant wrote to a co-defendant in the case in which a symbol appeared which Bowen believed was a AT@ superimposed on an AS@ and which Bowen forwarded to a gang intelligence officer. Bowen also testified about a photograph of appellant taken at the time of booking that showed a tattoo of a AT@ with downward-turned Ahorns.@ The State next called Emil Garza, a security threat group sergeant with the Texas Department of Criminal Justice who testified that he tracked and monitored individuals in the jail system who exhibited signs of being involved in gangs. He spoke about the Texas Syndicate prison gang; revealed that one of appellant=s co-defendants was a confirmed Texas Syndicate gang member but admitted he had no confirmation of appellant=s membership; testified that the symbol on the letter written by appellant was consistent with one of the ways that Texas Syndicate members signed off their letters; introduced photographs of tattoos of known Texas Syndicate members, pointing out the Ahorns@ on the AT@s; and opined that appellant=s tattoo appeared to resemble the AT@ of a Texas Syndicate member tattoo, although he admitted it was missing the AS@ that the gang tattoos contained. The State also introduced photographs of the crime scene, inventories of the items taken, the copy of the letter written by appellant, and photographs of appellant=s tattoo and tattoos of confirmed Texas Syndicate members.
Appellant=s brother and sister testified on his behalf that appellant was not a violent person and had been employed regularly at a variety of jobs since his release from prison. Appellant=s brother testified that appellant had a drug and alcohol problem from the time he was very young and the brother felt that sending appellant to a substance abuse facility would help him. Appellant=s sister knew appellant had been to drug rehabilitation centers while on parole but had not seen him actually on drugs. She believed a Aprison setting that treated people for drug or alcohol problems@ would be beneficial for him and believed he should receive community supervision.
Appellant also took the stand in his own behalf and testified that he had only been on community supervision once when he was very young; none of his crimes had involved violence; he had not been affiliated with a gang while in prison; he had no gang related tattoos; and that the ATS@ symbol on the letter he wrote was just a scribble that was Anot a gang-related thing@ to him. Appellant stated that he had been employed more often than not when he was not in prison, including at the time of the offense. He testified about his substance abuse problem, prior treatment and efforts to get more treatment, but admitted that at the time of the offense, he was still using crack cocaine Aalmost every day,@ as well as methamphetamine occasionally, and alcohol and marihuana Aall the time,@ although he was on parole and had previously spent two years in prison on a parole revocation based partly on his drug use.
Appellant=s counsel told him that if the judge found his priors true, then appellant was Alooking at 25 up@ and asked appellant if he understood, to which appellant responded that he did. Defense counsel then explained that one of the options the judge had was deferred adjudication in which he could send appellant to a Alock-down@ substance abuse felony treatment facility where appellant could get treatment and then asked appellant if that would be a viable option for him. Appellant responded that he had been to two programs in his life, one for six months and one for seventy-two days and felt that a longer stay would have helped him. Appellant also said he wanted to do something about his problem but needed professional help. Appellant admitted knowing at the time of the crime that if he was caught he was looking at a Asevere@ sentence. He also acknowledged that his only probated sentence had been revoked when he committed another crime. He also apologized to the victims of the offense and stated he was willing to accept the consequences for the crime he committed against them.
In closing arguments, the State asked the judge to sentence appellant to Anothing less than sixty years,@ while the defense asked the judge to consider the full range of options that he had, including placing appellant on deferred adjudication community supervision with a stay in a substance felony punishment facility. After retiring to consider the sentence, and a recess for lunch, the trial court found the enhancement paragraphs to be true and assessed punishment at sixty years in prison.
Request to Limit Voir Dire
In his first issue, appellant complains that the trial court erred in overruling his motion to restrict the State=s questioning on voir dire. Appellant filed a pretrial motion requesting that the trial court limit the State=s voir dire on punishment to a range of 2-99 years or life,[5] asserting that this would cover the entire possible range of punishment in the case. The State responded that it had a right to question the veniremembers about their ability to consider the range of punishment under enhancement provisions, so long as the questions were general and did not specifically reference appellant=s prior convictions.
We note first that no voir dire ever took place as appellant chose instead to waive his right to a jury and have the court determine his guilt and punishment. Hence, the questions which appellant complains that the trial court should have restricted were never asked. Nonetheless, appellant asserts that this Aadverse ruling clearly prejudiced Appellant=s case to obtain a fair trial on guilt-innocence@ and implies, but does not assert, that he decided to waive a jury trial because of this adverse decision.
We find no evidence in the record to support such a claim or to demonstrate any harm suffered by appellant. Moreover, it is well settled that a party has the right to question venire panel members on the range of punishment related to enhancement paragraphs as long as it is done generally, as a hypothetical, without informing the jury about specific allegations in the enhancement paragraphs against a defendant. Martinez v. State, 588 S.W.2d 954, 956-57 (Tex. Crim. App. 1979); Bevill v. State, 573 S.W.2d 781, 783 (Tex. Crim. App. 1978); Jack v. State, 867 S.W.2d 942, 944 (Tex. App.BBeaumont 1993, no pet.). Indeed, it is error to deny the parties the right to do so. Martinez, 588 S.W.2d at 957. Accordingly, the trial court did not err in denying appellant=s request to restrict voir dire.
Appellant=s first issue is overruled.
Denial of Motion to Withdraw
In his second issue, appellant charges that the trial court erred in failing to allow his appointed trial counsel to withdraw on the day of trial Aand to allow Appellant to employ an attorney.@ Appellant argues that the trial court=s failure to allow his appointed counsel to withdraw denied him the right to employ his own counsel and be represented by counsel of his own selection, which he asserts violated his due process rights.
The facts in this case do not support appellant=s contentions.
The record shows that the motion to withdraw was filed on the day of trial, Monday, October 23, 2000. At the hearing on this motion, prior to the scheduled commencement of trial, defense counsel stated that, when he had met with his client the prior Friday, October 20, 2000, appellant had indicated that he had not felt his attorney had done enough for him and so appellant wanted to ask for a new attorney. Appellant told the trial judge that he was working on hiring his own lawyer. The judge denied the motion to withdraw but told appellant that, if he wanted to hire his own lawyer and bring him in during the trial, that was acceptable. The judge advised appellant, however, that he would not Astop the case at this point@ as appellant had had Aplenty of time@[6] to hire his own attorney.[7] The record does not reflect that appellant retained counsel.
We do not find that the trial court denied appellant the right to be represented by retained counsel of his own choosing.
Appellant cites us to the case of Heard v. Gomez, 321 F.2d 88 (5th Cir. 1963), which is a two-paragraph per curiam opinion affirming a district court order. Review of the district court order, Gomez v. Heard, 218 F. Supp. 228, 229 (S.D. Texas 1962), reveals that the defendant in that case had retained counsel who was unable to attend Gomez=s scheduled state trial because he was then engaged in trying another case. Id. Gomez=s counsel filed a motion for continuance, swearing to such facts. Id. The state trial court denied the motion for continuance, appointed an attorney for Gomez, and put him to trial with the appointed attorney. Id. In a writ of habeas corpus from the state conviction, a federal district court found that the state trial judge, by denying the continuance and forcing the defendant to proceed to trial with appointed counsel instead of his already privately retained counsel, denied him the right to representation by counsel of his own choosing. Id.
In the present case, appellant did not have retained counsel. He was not forced to go to trial with his appointed counsel rather than his retained counsel. He was never denied the right to employ his own counsel and so be assisted by counsel of his own choosing.[8] Indeed, the trial court explicitly permitted him to retain his own counsel and told appellant that if he hired counsel to Abring him@ to court but appellant apparently chose not to do so or was unable to do so. We do not find that any action of the trial court denied appellant his right to be represented by retained counsel of his own choosing. We overrule appellant=s second issue.
Deferred Adjudication Claims
Appellant raises three complaints related to the question of deferred adjudication community supervision. In his third issue on appeal, appellant complains that he was denied a Afair and impartial@ judge because the trial judge did not: 1) admonish appellant as to deferred adjudication; and 2) inform appellant prior to accepting the plea that community supervision was not a possibility and allow appellant to withdraw his plea if the trial court was not going to consider community supervision. In his fourth issue on appeal, he argues that these failures of the trial court rendered his plea involuntary. In his final issue related to this subject, and fifth issue on appeal, appellant asserts that he was denied effective assistance of counsel because his trial counsel did not inform him that Aprobation@ was not a possibility or instruct him of his right to withdraw his plea. We will consider these issues in turn.
Denial of a AFair and Impartial@ Judge
Appellant=s first argument under his third issue is that, because the judge Akn[ew] that appellant was entering a plea without a plea bargain,@ the judge was required to admonish appellant as to deferred adjudication. Appellant provides no authority for this proposition and we know of no authority that requires a judge to admonish a defendant about deferred adjudication simply because he is making an open plea. Indeed, generally there is no requirement that a trial court admonish a defendant regarding community supervision at all. Harrison v. State, 688 S.W.2d 497, 499 (Tex. Crim. App. 1985). Nevertheless, a trial court may impose the duty upon itself to accurately admonish if it voluntarily offers an admonishment as to the availability of community supervision. Ex Parte Williams, 704 S.W.2d 773, 775 (Tex. Crim. App. 1986). However, appellant does not make this argument, or rely on such authority, in his third issue on appeal.[9] Rather, he simply argues that because he made an open plea, the trial court was required to admonish him about deferred adjudication. Appellant=s second complaint about the trial judge B that the trial court should have advised appellant that Aprobation was not a possibility@ and Aallow[ed] Appellant to withdraw his plea if the trial court was not going to consider probation@ B is likewise completely unsupported by authority. We first note that there is nothing in the record to demonstrate that the trial court did not consider the deferred adjudication community supervision that appellant requested and which was a legal possibility in appellant=s case. Additionally, appellant fails to provide any authority that states that a trial judge, in a non-plea bargained case, is required to advise the defendant what sentence he intends to assess, whether or not he is considering assessing deferred adjudication or a suspended prison sentence, or whether or not he intends to assess the sentence that a defendant would prefer. Likewise, appellant cites no authority that a trial judge in such a case must allow the defendant to withdraw his plea if the defendant does not like the sentence to be assessed. One of the benefits of a plea bargain is the right to be informed if the trial court does not intend to follow the plea bargain and to have the chance to withdraw the plea if the court has decided not to assess the punishment agreed upon by the defendant and the State. Tex. Code Crim. Proc. Ann. art. 26.13(a)(2)(Vernon Supp. 2002). The protections that appellant complains of not receiving are, by statute, not extended to open pleas. Id. By choosing to enter a plea without a plea bargain, therefore, appellant willingly entered into a plea without such protections. Moreover, a defendant is not entitled to withdraw his plea after the assessment of punishment, although it is within the court=s discretion to permit him to do so.[10] See Dorsey v. State, 55. S.W.3d 227, 234 (Tex. App.BCorpus Christi 2001, no pet.). Since appellant was not entitled to withdraw his plea, the trial court could not have erred in failing to admonish him about a non-existent right.
More to the point for the purposes of this Court, appellant=s arguments on appeal do not square with his listed third issue on appeal or his authorities cited. Although complaining that his conviction is void because he was denied a Afair and impartial@ judge, appellant makes no claims in his arguments that the judge was unfair or partial and instead complains of violations of procedures which he argues the judge was required to perform. However, the only authority appellant cites for his third issue relates only to the claim of the denial of a fair and impartial judge, specifically that: 1) the Texas Constitution requires a judge to recuse himself whenever he might be interested in a case or has participated in the investigation of the case;[11] 2) the code of criminal procedure prohibits a judge from sitting in a case where he may be the party injured;[12] and 3) due process requires that a trial judge be a neutral and detached hearing body or officer.[13] Appellant presents no facts or even arguments demonstrating that the judge was interested in the case, participated in the investigation, was the party injured or was not neutral or detached. In short, appellant=s cited authorities do not support his contentions and his contentions bear no relevance to his cited authorities. Whatever issue appellant desired this Court to review has been waived.[14] Tex. R. App. P. 38.1(h)(brief must contain a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record).
Voluntariness of the Plea
Considering then appellant=s fourth issue, we find no evidence supporting appellant=s claim that his plea was involuntarily made due to the same judicial Aerrors@ that he complains of under issue three. Appellant also avers that the trial judge=s question about deferred adjudication or probation being Aa part of this plea,@ and the judge=s response of Aokay@ to defense counsel=s response that appellant was Aeligible for it,@ constituted an admonishment about community supervision, thus imposing on the trial court the duty to admonish him that he was not eligible for Aprobation.@
Appellant does not claim on appeal that, but for these alleged errors, he would not have pled guilty. He simply argues that these alleged errors were made and that rendered his plea involuntary. In the present case, there was no motion for new trial or other evidentiary hearing on the question of voluntariness. Claims on appeal of an involuntary plea, without supporting confirmation in the record, will not be sufficient for a reviewing court to find a plea involuntary. Franklin v. State, 693 S.W.2d 420, 431 (Tex. Crim. App. 1985)(mere assertions in a brief not supported by evidence in the record will not be considered on appeal). We consider the totality of the circumstances in determining the voluntariness of a plea, viewed in the light of the entire record. Ybarra v. State, 960 S.W.2d 742, 745 (Tex. App.BDallas 1997, no pet.). Once a defendant has pled guilty and attested to the voluntary nature of his plea, he bears a heavy burden at a subsequent hearing to demonstrate a lack of voluntariness. Garcia v. State, 877 S.W.2d 809, 812 (Tex. App.BCorpus Christi, pet. ref=d).
The record shows no objection or protest or raising of this issue of voluntariness until the appellate brief was filed. The record before us indicates a voluntary plea. Appellant=s representations in his APlea Memorandum,@ including attached AAdmonishments,@ as well as his responses to the trial court during the plea, demonstrated that he understood the charges against him, had consulted with his attorney, was fully satisfied with his attorney, and was entering his plea freely. There is nothing in the record to contradict these statements.
Additionally, as noted previously, the first two Afailures@ of which appellant complains made his plea involuntary B 1) the failure of the trial judge to admonish him as to deferred adjudication when it was required because the judge Akn[ew] that appellant was entering a plea without a plea bargain;@ and 2) the failure of the judge to inform appellant prior to accepting the plea that community supervision was not a possibility and to allow appellant to withdraw his plea if the trial court was not going to consider community supervision B were not errors.
As for appellant=s final proposition, that the trial court erred in not admonishing appellant that, because of his prior record he was not eligible for community supervision, for which appellant cites Ramirez v State, 655 S.W.2d 319, 322 (Tex. App.BCorpus Christi 1983, no pet.) in support, we find the present case distinguishable from Ramirez. Even appropriating what was actually defense counsel=s statement and considering it as an admonishment from the judge, we view the statement as not actually inaccurate as appellant was, in fact, eligible for deferred adjudication community supervision. Appellant was even eligible for Aregular@ community supervision until and unless the trial court found the enhancement paragraphs to be true, which did not occur until the very end of the punishment hearing, immediately before the pronouncement of sentence. For this reason, the rationale of Ramirez v. State, 655 S.W.2d 319, 322 (Tex. App.BCorpus Christi 1983, no pet.) does not apply, as the Ramirez court found that the code of criminal procedure specifically prohibited the trial court from granting community supervision to the defendant because of the nature of the offense charged. In Ramirez, we noted that one of the direct consequences of that defendant=s plea of guilty to aggravated robbery was giving up the chance for community supervision.[15] Id. By contrast, appellant=s plea of nolo contendere to the charge of burglary did not divest him of the chance for community supervision, as previously noted.
Even assuming the trial court=s question and Aokay@ response was an inaccurate admonishment, where an inaccurate admonishment on community supervision is made, such action will not by itself render a plea involuntary. Ex Parte Williams, 704 S.W.2d at 776-77. Appellant must show that, because of the inaccurate admonishment, he was left unaware of the consequences of his plea. Id. There must also be an objective showing in the record that a defendant was misled or harmed by the inaccurate admonishment. Id.
There is nothing in the record in the instant case to demonstrate that defendant was misled or harmed, even if the brief exchange of which he complains could be considered an inaccurate admonishment. The record reflects that there was never any expectation that appellant might receive Aregular@ community supervision. Appellant was well aware, and testified he understood, that if the judge found the enhancements true, he was facing twenty-five or more years in prison. Appellant=s hopes, and his attorney=s efforts, centered around deferred adjudication community supervision, an option which the trial court had the power to grant, even despite a finding of true as to the enhancement paragraphs.[16] The fact that the trial court chose not to grant appellant his desired deferred adjudication community supervision does not render appellant=s plea involuntary. Tovar-Torres v. State, 860 S.W.2d 176, 178 (Tex. App.BDallas 1993, no pet.)( plea is not rendered involuntary simply because a defendant receives a greater punishment than he anticipated).
We overrule appellant=s fourth issue.
Ineffective Assistance of Counsel
In appellant=s fifth issue, he claims ineffective assistance of counsel, because his attorney did not inform him that Aprobation@ was not a possibility or instruct him of his Aright to withdraw his plea.@ Since appellant pled nolo contendere, in order to demonstrate ineffective assistance of counsel, appellant must prove that: (1) the advice given by his attorney was not within the range of competence demanded of attorneys in criminal cases; and (2) but for the attorney=s errors, appellant would, with a reasonable probability, not have pled no contest, but would have insisted on going to trial. Ex Parte Moody, 991 S.W.2d 856, 857-58 (Tex. Crim. App. 1999). Appellant must overcome the strong presumption that counsel=s actions fell within Aa wide range of reasonable representation,@ McFarland v. State, 928 S.W.2d 482, 500 (Tex. Crim. App. 1996), and, if the record shows that appellant asserted at the plea hearing that he understood the consequences of his plea, a @heavy burden@ is placed on him at a later hearing to show a lack of voluntariness. Solomon v. State, 39 S.W.3d 704, 707 (Tex. App.BCorpus Christi 2001, no pet.). AAny allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness.@ McFarland, 928 S.W.2d at 500.
Appellant has not met his burden. As noted, there was no motion for new trial raising such issue and hence no hearing and no testimony on the claimed ineffectiveness or the voluntariness of the plea. Indeed, we have no record in the present case as to what advice the attorney gave or how that affected appellant=s decision to plead guilty. There is certainly nothing in the record to prove that appellant would have chosen to go to trial, except for his attorney=s alleged failures. The record before us is simply not sufficient for this Court to find any ineffective assistance of counsel.[17]
Moreover, we find that the complained-of errors of counsel were not errors at all. Trial counsel could not have told appellant prior to the plea that Aprobation was not a possibility@ and thatAhe was not going to get probation@ because the trial court had the power to grant deferred adjudication but simply chose not to do so. Contrary to appellant=s assertions in the brief, the trial court never stated that community supervision was not going to be considered, though in this case, because of appellant=s history, deferred adjudication community supervision was the only viable community supervision option if the trial court found the enhancement paragraphs to be true. No one but the judge knew whether or not deferred adjudication would be granted until the judge ruled. Thus counsel could not have told his client that no community supervision would be granted as the possibility of deferred adjudication was clearly an option for the court and was presented and argued to the court by trial counsel.
Appellant=s other complaint, that the attorney should have advised him of his right to withdraw his plea Asince the trial court clearly stated that probation was not going to be considered by the [c]ourt,@ is similarly not supported by the record. The trial judge never made such a statement, nor did he ever insinuate that he was not considering appellant=s request for deferred adjudication community supervision. All parties in this case knew exactly what the defendant was requesting and the record reflects that the trial court treated appellant and his counsel with respect and courtesy, listening to all of appellant=s evidence and arguments, and retiring for a recess to take that matter under consideration before deciding appellant=s sentence.
We overrule appellant=s fifth issue on appeal.
Cruel and Unusual Punishment
In his final issue on appeal, appellant claims that the trial court abused its discretion in assessing a sentence of sixty years imprisonment, arguing that such sentence violated 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 because it was grossly disproportionate to the seriousness of the offense committed.
We note first of all that appellant has cited no authority in support of his state constitutional claims or explained how that protection differs from that provided by the federal constitution. Appellant has therefore waived his state constitutional claim. Narvaiz v. State, 840 S.W.2d 415, 432 (Tex. Crim. App. 1992). In any case, Texas courts make no distinction between Texas and federal constitutional provisions of cruel and unusual punishment and so our decision under either would be the same. Cantu v. State, 939 S.W.2d 627, 639 (Tex. Crim. App. 1996).
We overrule this issue. Appellant made no objection to his sentence to the trial court, either at the time of sentencing or in any post-trial motion, on any grounds, nor did he ever lodge an objection, under constitutional or other grounds, to the alleged disparity, cruelness, unusualness or excessiveness of the sentences. Even constitutional claims can be waived by failure to object. Smith v. State, 721 S.W.2d 844, 855 (Tex. Crim. App. 1986). To preserve an error for appellate review, a party must present a timely objection to the trial court, state the specific grounds for the objection, and obtain a ruling. Tex. R. App. P. 33.1(a). Generally, an appellant may not complain of an error pertaining to his sentence or punishment if he has failed to object or otherwise raise error in the trial court. Mercardo v. State, 718 S.W.2d 291, 296 (Tex. Crim. App. 1986); see also Solis v. State, 945 S.W.2d 300, 301 (Tex. App.B Houston [1st Dist.] 1997, pet. ref=d)(claim of grossly disproportionate sentence violative of Eighth Amendment waived by failure to object); Quintana v. State, 777 S.W.2d 474, 479 (Tex. App.BCorpus Christi 1989, pet. ref=d)(failure to object to sentence as cruel and unusual waives error). In the present case, by failing to object to the trial court=s sentence below, appellant has waived this issue on appeal.
Moreover, it is well-established that a sentence that falls within the range of punishment is not cruel and unusual. Samuel v. State, 477 S.W.2d 611, 614 (Tex. Crim. App. 1972). Appellant=s sentence fell in the mid-range of punishment for a habitual felony offender.[18] We recognize that it has been held that a sentence within the range of punishment may still violate the Eighth Amendment if it is grossly disproportionate to the offense committed.[19] Solem v. Helm, 463 U.S. 277, 289 (1983). However, the viability and mode of application of proportionate analysis in non-death penalty cases is currently in question. See McGruder v. Puckett, 954 F.2d 313, 315-16 (5th Cir. 1992)(discussing the various opinions issued in Harmelin v. Michigan, 501 U.S. 957 (1991) and their impact on the Solem decision). In the present case, even if error had been preserved as to this argument, and assuming arguendo the viability of a proportionality review, sixty years in prison was not a grossly disproportionate sentence considering the evidence presented as to the crime and appellant=s prior history and so no constitutional violation occurred.[20]
Conclusion
Having found appellant=s third issue waived and having overruled all of appellant=s remaining issues, we affirm the judgment of conviction and sentence by the trial court.
ERRLINDA CASTILLO
Justice
Do not publish.
Tex. R. App. P. 47.3(b).
Opinion delivered and filed
this 22nd day of August, 2002.
[1] Tex. Pen. Code Ann. '30.02(a)(1)(Vernon Supp. 2002).
[2] Tex. Pen. Code Ann. '12.42(d)(Vernon Supp. 2002).
[3] Included in the plea memorandum was a statement that the plea was being entered freely and voluntarily and that appellant was totally satisfied with the representation provided by his counsel. The admonishments included the following information about deferred adjudication:
6. In the event adjudication is deferred, and in the further event a condition of community supervision is violated, the defendant may be arrested and detained. The defendant is entitled to a hearing limited to the determination by the Court of whether it proceeds with an adjudication of guilt on the original charge. No appeal may be taken from this determination. After an adjudication of guilt, all proceedings, including assessment of punishment, pronouncement of sentence, granting of community supervision, and defendant=s appeal continue as if the adjudication of guilt had not been deferred. Upon adjudication of guilt, the Court may select any punishment authorized for the offense.
In the event adjudication is deferred by the Court, the defendant may file a written motion requesting final adjudication within 30 days after entering his/her plea and the deferment of adjudication; and, in such event, the judge shall proceed to final adjudication as in all other cases.
No other reference to community supervision, deferred or otherwise, appeared in the plea memorandum or admonishments. The application Afor a Probated Sentence@ was filed at the same time as the plea papers and specifically requests the court, not the jury, to consider the application. No application requesting Aprobation@ from the jury was ever filed.
[4] Appellant served time in prison for burglary of a habitation, burglary of a building, and robbery, as well as for parole violations.
[5] The range of punishment in this case would have been two to twenty years and up to a $10,000 fine if the jury found the enhancements not to be true, see Tex. Pen. Code Ann. ''30.02(c)(2), 12.33 (Vernon 1994 & Supp. 2002), five to ninety-nine years or life and up to a $10,000 fine if the jury found one enhancement true, Tex. Pen. Code Ann. '' 30.02(c)(2),12.42(b), 12.32 (Vernon 1994 & Supp. 2002) and twenty-five years to ninety-nine years or life if the jury found both enhancements true, see Tex. Pen. Code Ann. '12.42(d)(Vernon Supp. 2002).
[6] The case had been pending for approximately nine months. Appellant was arrested on the indictment on January 26, 2000. The trial court appointed an attorney to represent appellant on February 3, 2000. On February 24, 2000, the trial court appointed new counsel. That counsel represented appellant for the next eight months until the conclusion of the case. Prior to the day of trial, no motions to withdraw had been filed by this attorney. No requests by appellant for new counsel to replace this attorney, or motions to substitute a retained attorney, appear in the trial court=s record. Appellant did not file a motion for new trial presenting evidence as to any retained attorney whose services he had secured prior to the time of his plea, nor does he complain on appeal about the denial of the services of any particular attorney.
[7] Appellant did not make any request for a continuance to hire new counsel nor does he complain on appeal that the trial court should have granted him a continuance.
[8] Appellant does not claim on appeal that the trial court erred in failing to grant him new court-appointed counsel; moreover, we have held that a request for new appointed counsel made on the day of trial is too late. Degroot v. State, 24 S.W.3d 456, 460 (Tex. App.BCorpus Christi 2000, no pet.).
[9] Appellant does raise such an argument in reference to the voluntariness of his plea under his fourth issue and we will consider the matter in our review of that issue.
[10] We note that the record does not reflect that appellant ever asked to withdraw his plea, nor did he file a post-trial motion requesting to do so or a motion for new trial.
[11] Tex. Const. art. V, '11.
[12] Tex. Code Crim. Proc. Ann. art. 30.01 (Vernon Supp. 2002).
[13] Earley v. State, 855 S.W.2d 260, 262 (Tex. App.BCorpus Christi 1993), pet dism=d, 872 S.W.2d 758 (Tex. Crim. App. 1994).
[14] Nonetheless, our own review of the record, and the law as discussed supra, finds no factual basis to support a claim that appellant was denied a fair and impartial judge or legal basis to find that there was any error on the part of the trial court on the grounds asserted in the arguments made in the third issue.
[15] In that case, we only discussed the defendant=s eligibility for Aregular@ community supervision. The possibility of the defendant=s eligibility for deferred adjudication was not raised before this Court.
[16] See Tex. Code Crim. Proc. Ann. art. 42.12, '5(d) (Vernon Supp. 2002) for the offenses and circumstances which bar the grant of deferred adjudication. That section contains no bar related to a finding of true as to enhancement paragraphs for repeat or habitual felony offenders. Tex. Code Crim. Proc. Ann. art. 42.12, '5(d) (Vernon Supp. 2002).
[17] As noted by the court of criminal appeals, in the majority of cases, the record is not sufficiently developed to allow for a review of a complaint of ineffective assistance of counsel on direct appeal. Thompson v. State, 9 S.W.3d 808, 813-14 (Tex. Crim. App. 1999).
[18] See Tex. Pen. Code. Ann. '12.42(d)(Vernon Supp. 2002)(range of punishment for a habitual felony offender is imprisonment in the institutional division for life, or any term not more than ninety-nine years or less than twenty-five years).
[19] Appellant cites Weed v. State, 891 S.W.2d 22 (Tex. App.BFort Worth 1995, no pet.) as supporting his contention that the proper standard of review on this issue is that of an abuse of discretion. However, Weed does not even mention the Eighth Amendment or Acruel and unusual punishment,@ and the standard expressed therein explicitly relates to the proper standard of review when reviewing a trial court=s decision to revoke community supervision. Weed, 891 S.W.2d at 24. Weed has no applicability to the issue before us.
[20] The McGruder court, analyzing the Supreme Court=s splintered action in Harmelin,501 U.S. 957, 965 (1991), concluded that Athis much is clear: disproportionality survives, Solem does not.@ McGruder v. Pucket, 954 F.2d 313, 316 (5th Cir. 1992). Solem required an analysis of three questions: (1) the gravity of the offense and the harshness of the sentence; (2) the sentences imposed on other criminals in the same jurisdiction; and (3) the sentences imposed for commission of the same crime in other jurisdictions. Solem, 463 U.S. 277, 292 (1983). The McGruder court, drawing on one of the three opinions issued in Harmelin, refined the Solem analysis to explicitly require a threshold comparison of the harshness of the sentence and the gravity of the offense, and then only if the court inferred that the sentence is grossly disproportionate would it consider the remaining two factors enunciated by Solem. McGruder, 954 F.2d at 316. This Court has been cautious about applying the McGruder analysis. Sullivan v. State, 975 S.W.2d 755, 757 (Tex. App.BCorpus Christi 1998, no pet.). We need not consider its application today because the proportionality issue was not preserved and because no evidence as to the last two Solem factors was submitted to the trial court. Therefore no comparative analysis can be performed.