NO. 12-19-00389-CR
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
FELIPE NIEVES-PEREZ, § APPEAL FROM THE 114TH
APPELLANT
V. § JUDICIAL DISTRICT COURT
THE STATE OF TEXAS,
APPELLEE § SMITH COUNTY, TEXAS
MEMORANDUM OPINION
Felipe Nieves-Perez appeals his conviction for engaging in organized criminal activity.
In three issues, Appellant challenges the trial court’s denial of his motion to quash the
indictment, the length of his sentence, and the constitutionality of his court costs. We affirm.
BACKGROUND
Appellant was charged by indictment with engaging in organized criminal activity and
unlawful interception, use or disclosure of wire, oral, or electronic communications. He filed a
motion to quash the indictment in the organized crime case based—in pertinent part—on the
ground that it fails to give adequate notice. After a hearing, the trial court denied the motion to
quash. Subsequently, Appellant pleaded “guilty” to the organized crime charge, and the matter
proceeded to a jury trial on punishment.
At the punishment trial, the evidence showed that a convenience store owner told the
Tyler Police Department he found a credit card skimming device inside one of his gas pumps.
Through the use of an innovative investigation strategy, Tyler Police officers were able to
apprehend Appellant and his two codefendants while they were attempting to recover stolen
credit card information from the skimming device. In their possession, the officers found two
computers and about forty gift cards containing credit card information stolen from over three
hundred people.
Ultimately, the jury assessed Appellant’s punishment at imprisonment for life. This
appeal followed.
MOTION TO QUASH
In Appellant’s first issue, he argues that the trial court erred by denying his motion to
quash the indictment because the indictment fails to (1) allege a proper predicate offense, (2)
track the engaging statute, and (3) state an offense under the engaging statute.
Standard of Review and Applicable Law
A criminal defendant has a constitutional right to fair notice of the charged offense. State
v. Barbernell, 257 S.W.3d 248, 250 (Tex. Crim. App. 2008). A charging instrument must convey
sufficient notice to allow the accused to prepare a defense. Id. To that end, the code of criminal
procedure provides that an indictment must include everything that is necessary to be proved.
See id.; TEX. CODE CRIM. PROC. ANN. art. 21.03 (West 2009). In most cases, an indictment that
tracks the statutory text of an offense is sufficient to provide a defendant with adequate notice.
Barbernell, 257 S.W.3d at 251. We review a trial court’s ruling on a motion to quash a charging
instrument de novo. Smith v. State, 309 S.W.3d 10, 13-14 (Tex. Crim. App. 2010).
A person commits the offense of engaging in organized criminal activity as alleged in this
case if,
with the intent to establish, maintain, or participate in a combination or in the profits of a
combination or as a member of a criminal street gang, the person commits or conspires to
commit
....
(8) any felony offense under Chapter 32[.]
TEX. PENAL CODE ANN. § 71.02(a) (West Supp. 2020).
Analysis
The indictment in this case alleges that Appellant
did then and there, with the intent to establish, maintain, or participate in a combination or in
the profits of a combination, the combination consisting of the defendant and Yoerlan Suarez-
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Corrales and Dairon Jimenez-Roja, who collaborated in carrying on criminal activity,
intentionally and knowingly commit the offense of Fraudulent Use or Possession of
Identifying Information More Than 10 But Less Than 50 Items[.]
Under Chapter 32 of the penal code, a person commits the offense of fraudulent use or
possession of identifying information if he, with the intent to harm or defraud another, obtains,
possesses, transfers, or uses an item of
(1) identifying information of another person without the other person’s consent or effective
consent;
(2) information concerning a deceased natural person, including a stillborn infant or fetus, that
would be identifying information of that person were that person alive, if the item of
information is obtained, possessed, transferred, or used without legal authorization;
(3) identifying information of a child younger than 18 years of age.
Id. § 32.51(b) (West Supp. 2020). An offense under Section 32.51 is a second degree felony
when the number of items obtained, possessed, transferred, or used is ten or more but less than
fifty. Id. § 32.51(C)(3) (West Supp. 2020).
In arguing that the indictment failed to provide proper notice, Appellant noted in his
motion to quash that he was never arrested for or charged with fraudulent use or possession of
identifying information. He further noted that unlawful interception, use or disclosure of wire,
oral, or electronic communications, 1 with which he was charged, is not a predicate offense for
engaging in organized criminal activity. See id. § 71.02(a). Finally, Appellant argued that the
indictment fails to provide notice in violation of his right to due process because it “lists a new
offense without material elements [and] does not properly track the language of the predicate
offense[.]” He argues similarly on appeal. We disagree.
First, regarding Appellant’s apparent argument that a defendant charged with engaging in
organized criminal activity must be separately charged with the underlying offense, we note that
he cites no authority for this proposition, and we know of none. See TEX. R. APP. P. 38.1(i)
(requiring brief to contain clear and concise argument with appropriate citations to authorities).
To the contrary, the court of criminal appeals has held that prosecuting a defendant for both
engaging in organized criminal activity and its predicate offense violates the constitutional
1
See TEX. PENAL CODE ANN. § 16.02(b) (West 2019).
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prohibition against double jeopardy. See Ex parte Chaddock, 369 S.W.3d 880, 882 (Tex. Crim.
App. 2012); U.S. CONST. amend. V. Therefore, we reject any argument that the indictment failed
to provide notice because Appellant was not arrested for or charged with the predicate offense.
Furthermore, we reject Appellant’s argument that his indictment failed to provide notice
by naming the predicate offense without tracking the language of its statute and listing its
elements. When an element of an offense is the commission of an underlying offense, courts
have consistently held that the elements of and facts surrounding the underlying offense need not
be alleged in the indictment. See, e.g., Alba v. State, 905 S.W.2d 581, 585 (Tex. Crim. App.
1995) (in capital murder case, indictment need not allege constituent elements of underlying
offense); Linville v. State, 620 S.W.2d 130, 131 (Tex. Crim. App. 1981) (in robbery case,
elements and facts surrounding underlying theft need not be alleged in indictment); Crum v.
State, 946 S.W.2d 349, 359 (Tex. App.—Houston [14th Dist.] 1997, pet. ref'd) (in organized
crime case, indictment need not allege manner and means of underlying offense). Consequently,
we conclude that the indictment here was not required to track the language or list the elements
of the underlying offense in order to provide adequate notice of the charged offense. See id.
Accordingly, we overrule Appellant’s first issue.
CRUEL AND UNUSUAL PUNISHMENT
In Appellant’s second issue, he argues that his life sentence is grossly disproportionate to
his offense and constitutes cruel and unusual punishment in violation of the United States and
Texas Constitutions. He contends that he preserved his complaint for our review by raising it in a
motion for new trial and obtaining an adverse ruling in the trial court.
Before a complaint may be presented for appellate review, the record must show that it
was made to the trial court by a timely request, objection, or motion. TEX. R. APP. P. 33.1(a)(1).
An appellant fails to preserve error by failing to object when he has the opportunity. Burt v.
State, 396 S.W.3d 574, 577-78 (Tex. Crim. App. 2013). A sentencing issue may be preserved by
objecting at the punishment hearing, or when the sentence is pronounced. Id. at 577. An
appellant may raise a sentencing issue for the first time in a motion for new trial only if he did
not have an opportunity to object during the punishment hearing. Id. at 577 n.4.
In this case, after the trial judge assessed Appellant’s punishment at imprisonment for life
in accordance with the jury’s verdict, she asked whether there was any legal reason why the
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sentence could not be formally pronounced. Defense counsel responded, “No, Your Honor.”
Because Appellant had the opportunity to object to his sentence at the punishment hearing and
failed to do so, we conclude that he failed to preserve this issue for our review. See TEX. R. APP.
P. 33.1(a)(1); Burt, 396 S.W.3d at 577-78.
Furthermore, even if Appellant preserved his issue, we could not grant him relief because
his sentence does not constitute cruel and unusual punishment. The United States Constitution
provides that “[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel and
unusual punishment inflicted.” U.S. CONST. amend. VIII. This provision was made applicable to
the states by the Due Process Clause of the Fourteenth Amendment. Meadoux v. State, 325
S.W.3d 189, 193 (Tex. Crim App. 2010). Similarly, the Texas Constitution provides that
“[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel or unusual
punishment inflicted.” TEX. CONST. art. 1, § 13. The difference between the Eighth Amendment’s
“cruel and unusual” phrasing and the Texas Constitution’s “cruel or unusual” phrasing is
insignificant. Cantu v. State, 939 S.W.2d 627, 645 (Tex. Crim. App. 1997).
The legislature is vested with the power to define crimes and prescribe penalties. See
Davis v. State, 905 S.W.2d 655, 664 (Tex. App.—Texarkana 1995, pet. ref'd); see also Simmons
v. State, 944 S.W.2d 11, 15 (Tex. App.—Tyler 1996, pet. ref'd). Courts have repeatedly held that
punishment falling within the limits prescribed by a valid statute is not excessive, cruel, or
unusual. See Harris v. State, 656 S.W.2d 481, 486 (Tex. Crim. App. 1983); Jordan v. State, 495
S.W.2d 949, 952 (Tex. Crim. App. 1973); Davis, 905 S.W.2d at 664. Under the applicable law,
Appellant was convicted of engaging in organized criminal activity, a first degree felony,
enhanced, the punishment range for which is imprisonment for fifteen to ninety-nine years or life
and a possible fine of no more than $10,000.00. See TEX. PENAL CODE ANN. §§ 71.02(b) (West
Supp. 2020), 12.42(C)(1) (West 2019). Thus, the sentence imposed by the trial court falls within
the range set forth by the legislature. Therefore, the punishment is not prohibited as cruel,
unusual, or excessive per se. See Harris, 656 S.W.2d at 486; Jordan, 495 S.W.2d at 952; Davis,
905 S.W.2d at 664.
Nevertheless, Appellant urges us to perform the three-part test originally set forth in
Solem v. Helm 463 U.S. 277, 103 S. Ct. 3001 77 L. Ed. 2d 637 (1983). Under this test, the
proportionality of a sentence is evaluated by considering (1) the gravity of the offense and the
harshness of the penalty, (2) the sentences imposed on other criminals in the same jurisdiction,
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and (3) the sentences imposed for commission of the same crime in other jurisdictions. Id., 463
U.S. at 292, 103 S. Ct. at 3011. The application of the Solem test has been modified by Texas
courts and the Fifth Circuit Court of Appeals in light of the Supreme Court’s decision in
Harmelin v. Michigan, 501 U.S. 957, 111 S. Ct. 2680, 115 L. Ed. 2d 836 (1991) to require a
threshold determination that the sentence is grossly disproportionate to the crime before
addressing the remaining elements. See, e.g., McGruder v. Puckett, 954 F.2d 313, 316 (5th Cir.
1992), cert. denied, 506 U.S. 849, 113 S. Ct. 146, 121 L. Ed. 2d 98 (1992); see also Jackson v.
State, 989 S.W.2d 842, 845-46 (Tex. App.—Texarkana 1999, no pet.).
We are guided by the holding in Rummel v. Estelle in making the threshold
determination of whether Appellant’s sentence is grossly disproportionate to his offense. 445
U.S. 263, 100 S. Ct. 1133, 63 L. Ed. 2d 382 (1980). In Rummel, the Supreme Court considered
the proportionality claim of an appellant who received a mandatory life sentence under a prior
version of the Texas habitual offender statute for a conviction of obtaining $120.75 by false
pretenses. See id., 445 U.S. at 266, 100 S. Ct. at 1135. In that case, the appellant received a life
sentence because he had two prior felony convictions—one for fraudulent use of a credit card to
obtain $80.00 worth of goods or services and the other for passing a forged check in the amount
of $28.36. Id., 445 U.S. at 265-66, 100 S. Ct. at 1134-35. After recognizing the legislative
prerogative to classify offenses as felonies and, further, considering the purpose of the habitual
offender statute, the court determined that the appellant’s mandatory life sentence did not
constitute cruel and unusual punishment. Id., 445 U.S. at 284-85, 100 S. Ct. at 1144-45.
In this case, the combination of offenses committed by Appellant—engaging in organized
criminal activity with a prior felony conviction for theft—is no less serious than the combination
of offenses committed by the appellant in Rummel, while Appellant’s sentence is the same as the
one upheld by the Supreme Court in Rummel. Thus, it is reasonable to conclude that if the
sentence in Rummel is not constitutionally disproportionate, then neither is Appellant’s sentence
in this case. Therefore, the threshold test has not been satisfied, and we need not apply the
remaining elements of the Solem test. See McGruder, 954 F.2d at 316; see also Jackson, 989
S.W.2d at 845-46. Accordingly. we overrule Appellant’s second issue.
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COURT COSTS
In Appellant’s third issue, he argues that the trial court erred by assessing an
unconstitutional time payment fee as a court cost under former Section 133.103 of the Texas
Local Government Code. Act of June 2, 2003, 78th Leg., R.S., ch. 209, § 62, sec. 133.103, 2003
Tex. Gen. Laws 979, 996-97 (amended and redesignated 2019) (current version at TEX. CODE
CRIM. PROC. ANN. art. 102.030 (West Supp. 2020)). Several courts, including this one, have held
subsections (b) and (d) of Section 133.03 unconstitutional. See, e.g., Irvin v. State, No. 12-19-
00347-CR, 2020 WL 5406276, at *7 (Tex. App—Tyler Sept. 9, 2020, pet. filed) (mem. op., not
designated for publication); Ovalle v. State, 592 S.W.3d 615, 618 n.1 (Tex. App.—Dallas 2020,
pet. filed); Simmons v. State, 590 S.W.3d 702, 712 (Tex. App.—Waco 2019, pet. filed); Dulin v.
State, 583 S.W.3d 353 (Tex. App.—Austin 2019, pet. granted); Johnson v. State, 573 S.W.3d
328, 340 (Tex. App.—Houston [14th Dist.] 2019, pet. filed). However, we do not agree that the
trial court assessed the time payment fee in this case.
The judgment in this case shows $229.00 in court costs. The bill of costs likewise shows
$229.00 in court costs and states the following:
An additional time payment fee of $25.00 will be assessed if any part of a fine, court costs, or
restitution is paid on or after the 31st day after the date the judgment assessing the fine, court
costs or restitution is entered. See Texas Local Government Code, Section 133.103.
Although the bill of costs states that the time payment fee could be assessed, the record does not
show that it was assessed. Because the record does not show that the time payment fee was
assessed, we conclude Appellant’s argument is without merit. Accordingly, we overrule his third
issue.
DISPOSITION
Having overruled Appellant’s first, second, and third issues, we affirm the trial court’s
judgment.
GREG NEELEY
Justice
Opinion delivered March 18, 2021.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
(DO NOT PUBLISH)
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COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
JUDGMENT
MARCH 18, 2021
NO. 12-19-00389-CR
FELIPE NIEVES-PEREZ,
Appellant
V.
THE STATE OF TEXAS,
Appellee
Appeal from the 114th District Court
of Smith County, Texas (Tr.Ct.No. 114-1656-18)
THIS CAUSE came to be heard on the appellate record and briefs filed
herein, and the same being considered, it is the opinion of this court that there was no error in the
judgment.
It is therefore ORDERED, ADJUDGED and DECREED that the judgment
of the court below be in all things affirmed, and that this decision be certified to the court
below for observance.
Greg Neeley, Justice.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.