TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-18-00361-CR
Fernando Garcia-Escobar, Appellant
v.
The State of Texas, Appellee
FROM THE 403RD DISTRICT COURT OF TRAVIS COUNTY
NO. D-1-DC-17-202029, THE HONORABLE BRENDA KENNEDY, JUDGE PRESIDING
MEMORANDUM OPINION
A jury found appellant Fernando Garcia-Escobar guilty of continuous sexual
abuse of a young child for sexually abusing his stepdaughter, M.H.-M., see Tex. Penal Code
§ 21.02(b), and assessed his punishment at confinement for life in the Texas Department of
Criminal Justice, see id. § 21.02(h). In a single point of error, appellant asserts that his sentence
is cruel and unusual in violation of the Eighth Amendment. Finding that appellant failed to
preserve this claim for appellate review, we affirm the trial court’s judgment of conviction.
BACKGROUND
The evidence at trial demonstrated that appellant began sexually abusing M.H.-M.
when she was eight or nine years old. The sexual abuse stopped when M.H.-M. was thirteen
years old because her younger brother walked in on appellant having sexual intercourse with
M.H.-M. At trial, M.H.-M. described the various sexual acts that appellant perpetrated against
her over the four- or five-year period, including putting his “private part” inside her “private
part,” putting his mouth on her “vagina,” putting his fingers inside her “vagina,” taking pictures
of her “vagina” with his phone, and making her put her mouth on his penis. She could not recall
how many times the sexual abuse occurred but indicated that “it happened really frequently,”
typically, depending on the sexual act perpetrated, once or twice a week.
Appellant did not testify at trial, but a video recording of his interview with
police, which occurred after appellant turned himself in the day after his stepson discovered the
sexual abuse, was admitted at trial. In the interview, appellant admitted that he was vaginally
penetrating M.H.-M. with his penis when his stepson walked in and confessed that he had been
having sexual intercourse with M.H.-M. for about four years, although appellant insisted that he
never forced his stepdaughter, never threatened her, and never did anything “against her will.”
The jury found appellant guilty of continuous sexual abuse of a young child and
assessed a life sentence as appellant’s punishment. Appellant filed a motion for new trial, which
was overruled by operation of law, and this appeal followed.
DISCUSSION
Under the sentencing scheme for continuous sexual abuse of a young child, a
defendant convicted of that offense is subject to an enhanced first-degree punishment range:
imprisonment for life or for any term of not more than 99 years or less than 25 years. See id.
§ 21.02(h). In addition, an inmate serving a sentence for that offense is not eligible for release
on parole. See Tex. Gov’t Code § 508.145(a). Thus, a defendant convicted of continuous sexual
abuse of a young child who is given a life sentence, as appellant was here, is sentenced to life
without the possibility of parole.
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In his sole point of error, appellant asserts that a sentence of life without parole
for a non-homicide offense violates the prohibition against cruel and unusual punishment under
the Eighth Amendment to the United States Constitution. See U.S. Const. amend. VIII
(providing that “cruel and unusual punishments” shall not be inflicted). After reviewing
the record before us, we conclude that appellant failed to preserve this complaint for
appellate review.
“[A]ll errors—even constitutional errors—may be forfeited on appeal if an
appellant failed to object at trial.” Garza v. State, 435 S.W.3d 258, 260–61 (Tex. Crim. App.
2014); Fuller v. State, 253 S.W.3d 220, 232 (Tex. Crim. App. 2008). Generally, Eighth
Amendment issues are forfeited if not raised in the trial court. Garza, 435 S.W.3d at 261; see
Rhoades v. State, 934 S.W.2d 113, 120 (Tex. Crim. App. 1996) (holding that defendant waived
complaint regarding violation of state constitutional right against cruel and unusual punishment
because complaint was raised for first time on appeal); Curry v. State, 910 S.W.2d 490, 497
(Tex. Crim. App. 1995) (holding that defendant waived complaint that punishment was cruel and
unusual under Eighth Amendment when complaint was raised for first time on appeal); see, e.g.,
Lucero v. State, 246 S.W.3d 86, 98 (Tex. Crim. App. 2008) (concluding that defendant did not
raise Eighth Amendment claim in trial court and therefore did not preserve it for
appellate review).
To preserve a complaint that a sentence constitutes cruel and unusual punishment,
a defendant must make a timely, specific objection to the trial court or raise the issue in a motion
for new trial. Marin v. State, No. 03-16-00731-CR, 2017 WL 5985496, at *1–2 (Tex. App.—
Austin Dec. 1, 2017, no pet.) (mem. op., not designated for publication); see Burt v. State,
396 S.W.3d 574, 577 (Tex. Crim. App. 2013) (holding that sentencing issue is preserved by
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objecting at punishment hearing, when sentence is pronounced, or, in some instances, by raising
issue in motion for new trial) (citing Idowu v. State, 73 S.W.3d 918, 923 (Tex. Crim. App. 2002),
Bitterman v. State, 180 S.W.3d 139, 142–43 (Tex. Crim. App. 2005)); Davidson v. State,
No. 03-13-00708-CR, 2014 WL 3809813, at *1 (Tex. App.—Austin Aug. 1, 2014, no pet.)
(mem. op., not designated for publication) (“It is well established that to preserve a complaint of
cruel and unusual punishment, a defendant must make a timely, specific objection to the trial
court or raise the issue in a motion for new trial.”); see also Tex. R. App. P. 33.1(a) (to preserve
complaint for appellate review, party must have presented specific and timely request, motion, or
objection to trial court).
In this case, appellant did not assert that his sentence was cruel and unusual in
violation of the Eighth Amendment when the trial court imposed the sentence, in a motion for
new trial, or at any other time in the trial court. Appellant concedes as much in his brief but
argues that his claim challenging the constitutionality of his sentence is exempt from the
preservation-of-error requirement.
The United States Supreme Court has held that “mandatory life without parole for
those under the age of 18 at the time of their crimes violates the Eighth Amendment’s prohibition
on ‘cruel and unusual punishments.’” Miller v. Alabama, 567 U.S. 460, 465 (2012). The Court
of Criminal Appeals subsequently held that the rule announced in Miller was a new substantive
rule, as opposed to a procedural rule, and therefore applied retroactively. Ex parte Maxwell,
424 S.W.3d 66, 73–76 (Tex. Crim. App. 2014). The Court of Criminal Appeals has also held
that a Miller claim—a claim that the mandatory punishment of life in prison without the
possibility of parole for a juvenile offender violates the Eighth Amendment—is not forfeited by
the failure to raise it at trial. Garza, 435 S.W.3d at 262–63. While affirming that Eighth
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Amendment issues generally are forfeited if not raised in the trial court, the high court
recognized an exception to the preservation-of-error requirement for “substantive status-based or
individualized-sentencing claims under the Eighth Amendment and embraced by Miller.” See id.
at 262. Relying on Garza, appellant contends that his claim is such a claim. We disagree.
“The heart of a Miller claim is the assertion that the Constitution would be
violated by applying a mandatory sentence of life without parole to the defendant because he
was underage at the time of his offense.” Franklin v. State, — S.W.3d —, No. PD-0787-18,
2019 WL 2814861, at *2 (Tex. Crim. App. July 3, 2019); see Maxwell, 424 S.W.3d at 75 (“But
Miller is driven, first and foremost, by the conclusion that ‘children are constitutionally different
from adults for purposes of sentencing.’” (quoting Miller, 567 U.S. at 471)). Appellant does not
challenge the constitutionality of his sentence based on his age at the time of his offense. Rather,
he urges a “categorical ban” to “all life without parole sentencing for non-homicidal offenses
under the Eighth Amendment.” Thus, he does not assert a substantive status-based or individual-
sentencing claim embraced by Miller and his reliance on Garza to argue that he did not need to
preserve his claim at trial is misplaced. Invoking Garza, and therefore invoking Miller, “does
not cast a magic cloak of unforfeitability over a claim.” Franklin, 2019 WL 2814861, at *2.
Accordingly, we reject appellant’s contention that his complaint was not subject
to procedural default. See Mendiola v. State, No. 14-15-01095-CR, 2017 WL 888329, at *5–6
(Tex. App.—Houston [14th Dist.] Mar. 2, 2017, pet. ref’d) (mem. op., not designated for
publication) (rejecting complaint based on failure to preserve error in trial court when claim not
embraced by Miller); Maza v. State, No. 13-14-00128-CR, 2015 WL 3637821, at *3 (Tex.
App.—Corpus Christi June 11, 2015, no pet.) (mem. op., not designated for publication)
(concluding that Maxwell and Garza are limited to “‘procedural default’ by juveniles sentenced
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to life without parole in violation of their Eighth Amendment rights as defined by Miller” and
thus appellant, “an adult offender challenging the constitutionality of a sentence,” failed to
preserve challenge because he did not raise it at trial); see also Hernandez v. State,
No. 09-16-00388-CR, 2018 WL 4904589, at *18 (Tex. App.—Beaumont Oct. 10, 2018, pet.
ref’d) (mem. op., not designated for publication) (holding that appellant forfeited right to
complain that sentence of life without parole for continuous sexual abuse of young child was
cruel and unusual because he failed to object on that basis when sentenced); Prine v. State,
No. 12-17-00241-CR, 2018 WL 1736796, at *1 (Tex. App.—Tyler Apr. 11, 2018, no pet.)
(mem. op., not designated for publication) (concluding that appellant waived Eighth Amendment
challenge to 99-year sentence without parole for continuous sexual abuse of young child by not
objecting at trial level).
Preservation of error is a systemic requirement on appeal. Darcy v. State,
488 S.W.3d 325, 327 (Tex. Crim. App. 2016); Bekendam v. State, 441 S.W.3d 295, 299 (Tex.
Crim. App. 2014). A reviewing court should not address the merits of an issue that has not been
preserved for appeal. Blackshear v. State, 385 S.W.3d 589, 590 (Tex. Crim. App. 2012); Wilson
v. State, 311 S.W.3d 452, 473–74 (Tex. Crim. App. 2010).
Appellant’s claim is not embraced by Miller; thus, he was required to preserve it
in the trial court. Because he failed to do so, he is not entitled to appellate review of this
complaint. Accordingly, we overrule appellant’s sole point of error.
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CONCLUSION
Having concluded that appellant procedurally defaulted on his claim challenging
the constitutionality of his sentence because he did not raise it at trial, we affirm the trial court’s
judgment of conviction.
__________________________________________
Melissa Goodwin, Justice
Before Justices Goodwin, Baker, and Smith
Affirmed
Filed: August 22, 2019
Do Not Publish
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