In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
No. 06-15-00123-CR
JOSE DE LA GARZA, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 18th District Court
Johnson County, Texas
Trial Court No. F48905
Before Morriss, C.J., Moseley and Burgess, JJ.
Memorandum Opinion by Justice Moseley
MEMORANDUM OPINION
Jose (also known as Joe) David De La Garza, charged in Johnson County, Texas,1 with
failure to comply with sex-offender registration requirements, the punishment being enhanced by
previous convictions, entered a plea of guilty to the charge, and requested a trial before a jury as
to the issue of punishment. After the jury returned its verdict wherein it found the enhancement
paragraph to be “true,” it directed that De La Garza was to be sentenced to serve twenty years’
confinement and pay a $10,000.00 fine. De La Garza has raised two issues on appeal: (1) he
maintains that the trial court erred by allowing the introduction of inadmissible hearsay testimony
and (2) he avers that the sentence assessed to him amounted to a disproportionate sentence.
By way of background, De La Garza was tried as an adult and found guilty of a forcible
rape in 1978 committed by him when he was fifteen years old. It was this conviction of a sex
crime which triggered the requirement of De La Garza to continuously maintain registration in
Texas. After having been released from imprisonment for that crime, De La Garza was convicted
again in 1989, this time being for violation of federal drug laws, serving about sixteen years in
prison for that offense.
Persons convicted of certain sex-related offenses are required pursuant to Chapter 62 of the
Texas Code of Criminal Procedure to register at least annually with certain offices in each county,
providing those offices with certain data (such as residence address and places of employment).
1
Originally appealed to the Tenth Court of Appeals, this case was transferred to this Court by the Texas Supreme
Court pursuant to its docket equalization efforts. See TEX. GOV’T CODE ANN. § 73.001 (West 2013). We are unaware
of any conflict between precedent of the Tenth Court of Appeals and that of this Court on any relevant issue. See
TEX. R. APP. P. 41.3.
2
TEX. CODE CRIM. PROC. ANN. arts. 62.001–.408 (West 2006 & Supp. 2015). The registration
requirement is triggered more often than annually if the information provided has changed. Article
62.102(a) of the Texas Code of Criminal Procedure is the statute within that chapter that
criminalizes the failure of a person convicted of a sex-related offense to comply with any of the
registration requirements set out in the chapter. TEX. CODE CRIM. PROC. ANN. art. 62.102(a). It is
not contested that De La Garza had a duty to register as a person convicted of a sex-related offense
and that he failed to do so at the time alleged in his indictment.
De La Garza first registered as a convicted sex crime offender with the Cleburne, Texas
Police Department (the CPD) in 2004. For a number of years, De La Garza reported to the CPD
that he was residing in Cleburne but was unemployed. In 2014, Corporal Bryan Proctor, an officer
with the CPD, noticed that De La Garza had failed to satisfy his required annual registration for
two years. Initially, upon being confronted by Proctor, De La Garza indicated that he had not
registered with the CPD because he had been living and working “down south.” Proctor told the
jury that if De La Garza had moved or obtained employment, he had the duty to inform both the
CPD and any agency with whom he would have had the responsibility to register in the other sites
where De La Garza maintained that he had been working and living. At this point in the
examination of Proctor, the following exchange occurred.
Q. So -- now when he’s -- when he moves to south Texas, what exactly
is he supposed to do?
A. When an offender moves, he’s required, first of all, to check out with
the registering office which would be me. He’s required to tell me, hey, I’m moving
to this address, to this location, to this jurisdiction. I’m then required to fill out
paperwork, have him sign the paperwork and then he had to take that paperwork to
the registering office that he’s moving to within seven days. I’m also required at
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that point to notify them by either fax, e-mail or anyway [sic] I can get those
documents to them, that this particular sex offender is moving into that particular
area. He then has seven days to check in with that registering authority that he’s
moving to to verify his information and to make sure everything is good to go there.
Q. So he needs to tell them in south Texas and y’all in Cleburne; is that
right?
A. Correct.
Q. Any indication that he had told the authorities in south Texas?
[Counsel for De La Garza]: I’m going to object, Judge, unless he
has direct evidence and he can say that he spoke with someone.
THE COURT: Do you have that knowledge, “yes” or “no”?
THE WITNESS: I do.
THE COURT: How did you gain that knowledge?
[Proctor]: Through the secured DPS database website.
THE COURT: I’m going to allow it.
Q. [By the State] Any indication that he had told whoever -- wherever
he was at in south Texas?
A. He never told anybody in south Texas. He never registered with
anybody.
It is the above exchange upon which De La Garza’s first point of error is based. In other
words, he now complains that when Proctor was allowed to testify concerning the indication that
De La Garza made no report to authorities as required of people convicted of sex offenses, this
was a violation of the hearsay rule.
It is cogent here that the objection lodged by De La Garza could have been construed in
more than one fashion. As to the first part of the objection (“unless he has direct evidence”), it
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could be that De La Garza believed that Proctor would have needed to make a personal observation
of De La Garza’s failure. The second part of the sentence (“he can say he spoke with someone”)
appears to beg for the introduction of hearsay from unidentified sources. In short, the nature of
the objection is quite unclear.
It is elemental that as a prerequisite to presenting a complaint for appellate review, the
record must show that the complaint was made to the trial court by a timely request, objection, or
motion. TEX. R. APP. P. 33.1. “The objection must merely be sufficiently clear to provide the trial
judge and opposing counsel an opportunity to address and, if necessary, correct the purported
error.” Ford v. State, 305 S.W.3d 530, 533 (Tex. Crim. App. 2009). The Texas Court of Criminal
Appeals has unequivocally directed that where an issue has not been properly preserved for appeal,
neither a court of appeals nor the Court of Criminal Appeals should address the merits of that issue.
Blackshear v. State, 385 S.W.3d 589, 591 (Tex. Crim. App. 2012). Here, we need not further parse
the question or response to determine if there was actually hearsay involved, and we will not
venture into the “Serbonian bog” of advisory opinions. Since there was no understandable
objection voiced, had there been any error, it was not preserved. De La Garza’s first point of error
is denied.
De La Garza’s other point on appeal complains that his twenty-year sentence—which is
the maximum permissible sentence—is disproportionately harsh for the crime of failing to register
as a person convicted of a sex-related offense (De La Garza’s fine of the maximum $10,000.00 is
not mentioned in his brief.).
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The United States Supreme Court visited the issue of the proportionality of sentences at
length in Solem v. Helm, 463 U.S. 277, 290 (1983), laying down a three-part test of objective
criteria: “(i) the gravity of the offense and the harshness of the penalty; (ii) the sentences imposed
on other criminals in the same jurisdiction; and (iii) the sentences imposed for commission of the
same crime in other jurisdictions.” Id. at 292. That test was somewhat modified in Harmelin v.
Michigan, 501 U.S. 957 (1991). The United States Fifth Circuit adopted the modified Solem test
in McGruder v. Puckett, 954 F.2d 313, 316 (5th Cir. 1992). Under the McGruder analysis, the
initial inquiry is a comparison of the gravity of the offense weighed against the severity of the
punishment received. Id. If a reviewing court does not find that the sentence is grossly
disproportionate to the offense, there is no need to attempt to apply the final two prongs of the
Solem test. McGruder v. Puckett, 954 F.2d 313, 316 (5th Cir. 1992).
“The legislature is vested with the power to define crimes and prescribe penalties.” Davis
v. State, 905 S.W.2d 655, 664 (Tex. App.—Texarkana 1995, pet. ref’d). “Texas courts have
traditionally held that, as long as the punishment assessed is within the range prescribed by the
Legislature in a valid statute, the punishment is not excessive, cruel, or unusual.” Williamson v.
State, 175 S.W.3d 522, 524 (Tex. App.—Texarkana 2005, no pet.) (citing Jordan v. State, 495
S.W.2d 949, 952 (Tex. Crim. App. 1973)). “Any punishment assessed within the range that is
authorized by statute is not cruel and unusual punishment, and does not render the sentence
excessive.” Price v. State, 35 S.W.3d 136, 144 (Tex. App.—Waco 2000, pet. ref’d). It is
undisputed that De La Garza’s enhanced sentence is within the statutorily allowable range of
punishment. In this circumstance, the jury heard evidence of De La Garza’s conviction of forcible
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rape and his conviction on drug charges, both of these precipitating lengthy prison stays by
De La Garza. Atop those convictions, the jury also heard that even though De La Garza had
committed the offense for which he was on trial, there were multiple offenses under the failure to
register requirements with which he had not been charged. In addition, it was developed that the
last time that De La Garza had reported to the CPD, the residence he reported was within a “safe
zone” for children (one designed to be free of sexual offenders who had a responsibility to register)
and that he would have to move; there is no evidence that he did move, only evidence that he made
no more reports to the authorities. The jury could have assumed that De La Garza simply did not
care that there were rules that applied to him and that he opted to disregard them if they interfered
with his way of life. The jury could also well have concluded that De La Garza was nothing less
than a scofflaw and that a more lenient sentence than the maximum allowable would have little or
no impact on him.
De La Garza has failed to show that the sentence meted to him by the jury was
disproportionate to the crime that he committed.
We affirm the judgment of the trial court.
Bailey C. Moseley
Justice
Date Submitted: February 29, 2016
Date Decided: April 12, 2016
Do Not Publish
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