Opinion
NO. 01-18-00329-CR NO. 01-18-00330-CR
01-31-2019
AMAIRANI AVALOS, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 179th District Court Harris County, Texas
Trial Court Case Nos. 1546145 & 1556489
MEMORANDUM OPINION
Amairani Avalos appeals her convictions for injury to a child causing serious bodily injury. See TEX. PENAL CODE § 22.04(a)(1). She was charged with one count of injury to a child in two separate indictments, and she pleaded guilty to each indictment. In April 2018, the court sentenced her to 12 years' imprisonment in each case, with the sentences running concurrently. On appeal, she argues that her convictions violate the Double Jeopardy Clause of the Fifth Amendment to the U.S. Constitution and that her sentence is a cruel and unusual punishment in violation of the Eighth Amendment to the U.S. Constitution. For the reasons that follow, we affirm.
Background
Amairani Avalos and her boyfriend lived with four children in an apartment in Houston. In March 2017, when Avalos went to the hospital to deliver a fifth child, her boyfriend's family assisted in caring for the children. A family member called 911 after observing then-three-year-old G.D., one of Avalos's children, who appeared abused and neglected. Authorities arrived at the couple's apartment and took all of the children for observation and medical services. Only G.D. needed medical care. He appeared emaciated with stick-thin arms, a bloated belly, visible ribs, marks over his entire body, and a layer of soft, down-like hair covering his body. Medical personnel observed extensive bruising and abrasions on his body, scarring to his left ear, hair falling out, and burn marks on his back. He could not walk or talk at the expected level for his age and appeared so severely malnourished that hospital personnel believed he could die from malnourishment. A physician's note stated that G.D. was a victim of torture including physical abuse, starvation, neglect, isolation, and psychosocial maltreatment.
An investigation ensued, and the other children told investigators that Avalos mistreated G.D. because he had a different father. They described how she beat him and did not give him food. Avalos's boyfriend expressed remorse and blamed her.
Avalos and her boyfriend believed that they were the parents of the other three children and that G.D. had a different father.
Avalos's boyfriend was also convicted of injury to a child causing serious bodily injury for his failure to seek medical care for G.D. The court deferred adjudication of his guilt and placed him on community supervision for seven years. He is not a party to this appeal.
Avalos was charged in two separate indictments with injury to a child causing serious bodily injury. The first indictment alleged that on or about March 22, 2017, Avalos caused serious bodily injury by her actions, including striking her then three-year-old child with a belt, shoe, unknown object, or her hand, or by burning him with a cigarette. The second indictment alleged that she caused serious bodily injury by omission to the same child by failing to provide him with food and nourishment or failing to provide medical care on or about the same date.
She pleaded guilty to the charge in each indictment without a sentencing recommendation. At a consolidated punishment hearing, the court entered a presentence investigation report into evidence without objection. The report included medical records, photos, videos, and statements from witnesses and Avalos.
A detective, a Court Appointed Special Advocate ("CASA") volunteer, and Avalos also testified at the hearing. The detective testified that she interviewed Avalos's two young daughters. They both described that G.D. was treated differently by their mother. While Avalos gave them food, G.D. did not get to eat. When asked where she ate her meals, one daughter explained that she sat at a table with her siblings while G.D. did not eat and sat on the floor. The children told the detective that their mother did not hit them but that she hit G.D. with various things because he had toilet training issues. The detective also interviewed the boyfriend's mother who had contacted authorities for help for G.D. She had not seen G.D. in one-and-a-half years and was shocked when she saw him. She believed that Avalos treated G.D. differently because he looked like his father. Avalos testified and admitted hitting her child with a shoe and not feeding him enough. The CASA volunteer testified that G.D. had made significant physical and emotional improvements in foster care. The court sentenced Avalos to 12 years' imprisonment concurrently in each case.
On appeal, Avalos raises two issues. First, she argues that her conviction and punishment for two separate counts of injury to a child violate the Double Jeopardy Clause of the United States Constitution. She contends her actions were a single event. Second, she argues that her sentence violates the Eighth Amendment's protection against cruel and unusual punishment. We affirm.
Double Jeopardy
Avalos argues that her two convictions for injury to a child causing serious bodily injury violate the Double Jeopardy Clause of the Fifth Amendment to the U.S. Constitution because the indictments allege that her conduct occurred on the same date against the same child victim. See U.S. CONST. amend. V. The State argues that Avalos forfeited her double jeopardy claim by failing to object in the trial court, or, alternatively, that her convictions for injury to a child by act and injury to a child by omission do not violate double jeopardy.
The Double Jeopardy Clause of the United States Constitution protects against: (1) a second prosecution for the same offense after acquittal; (2) a second prosecution for the same offense after conviction; and (3) multiple punishments for the same offense. United States v. Dixon, 509 U.S. 688, 695-96, 113 S. Ct. 2849, 2855 (1993); Langs v. State, 183 S.W.3d 680, 685 (Tex. Crim. App. 2006). Avalos asserts that she has been improperly subjected to multiple punishments for the same offense.
A. Analysis
As a preliminary matter, we must decide whether Avalos preserved her complaint for appellate review. We hold she did not.
As a general rule, a party must preserve a complaint for appellate review by making a timely and specific objection, motion, or request in the trial court. See TEX. R. APP. P. 33.1. A potential multiple-punishment double jeopardy claim may be forfeited if the defendant does not properly preserve the claim by raising it in the trial court. Langs, 183 S.W.3d at 686; Gonzalez v. State, 8 S.W.3d 640, 642-43 (Tex. Crim. App. 2000). Requiring the defendant to preserve her multiple-punishments double jeopardy claim allows the trial court and the prosecution the opportunity to remove the basis for the objection and avoid the risk of an unnecessary retrial. Langs, 183 S.W.3d at 686 n.22 (quoting Gonzalez, 8 S.W.3d at 645-46).
A defendant may raise a double jeopardy claim for the first time on appeal when the undisputed facts show that the violation is clearly apparent on the face of the record and when enforcement of usual rules of procedural default serves no legitimate state interests. Gonzalez, 8 S.W.3d at 642-43. A double jeopardy claim is apparent on the face of the trial record if resolution of the claim does not require further proceedings to introduce additional evidence in support of the claim. Ex parte Denton, 399 S.W.3d 540, 544 (Tex. Crim. App. 2013); Ex parte Knipp, 236 S.W.3d 214, 216, n.3 (Tex. Crim. App. 2007); Gonzalez, 8 S.W.3d at 643.
Avalos did not raise a double jeopardy objection in the trial court. Instead, she argues that her double jeopardy claim does not require preservation because the violation is clearly apparent on the face of the record. We disagree.
Injury to a child is a result-oriented offense. See Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007); Villanueva v. State, 227 S.W.3d 744, 748 (Tex. Crim. App. 2007). This means that the child's injury forms the allowable unit of prosecution. Villanueva, 227 S.W.3d at 748. "If the focus of the offense is the result—that is, the offense is a 'result of conduct' crime—then different types of results are considered to be separate offenses, but different types of conduct are not." Huffman v. State, 267 S.W.3d 902, 907 (Tex. Crim. App. 2008). A defendant may be held criminally responsible for failing to seek medical care for a child's underlying injury if the failure to seek care resulted in "separate and discrete, or at least incrementally greater" injury to the child. Villanueva, 227 S.W.3d at 749. Consequently, whether separate legal theories are separate offenses depends upon whether the theories differ with respect to the result of the defendant's conduct. Huffman, 267 S.W.3d at 905.
The face of the record does not show a clear double jeopardy violation. Rather, the two separate indictments related to two types of injury to G.D.—that is, the indictments alleged conduct that led to different injuries. The first indictment charged Avalos with violating the injury-to-a-child statute by hitting her son with various implements or burning him with a cigarette, leading to bruises and burns. The second indictment charged Avalos with violating the statute by failing to provide food and nourishment or failing to provide medical care to her son, as shown by severe malnourishment or developmental delays. Each indictment listed the same on-or-about date. Additional proceedings would be required to introduce evidence supporting that G.D. did not receive separate, discrete, or incrementally greater injuries from Avalos's actions, failure to seek medical care, and failure to provide nourishment. See Ex parte Denton, 399 S.W.3d at 544; Villanueva, 277 S.W.3d at 749.
Avalos argues that the indictments listing the same on-or-about date demonstrate that her conduct was part of one continuous course of conduct or action and should be punished as a single offense. But an indictment may allege any date that is within the statute of limitations for the charged offense and before the date of the presentment of the indictment. Ex parte Goodman, 152 S.W.3d 67, 71 (Tex. Crim. App. 2004); Sledge v. State, 953 S.W.2d 253, 255-56 (Tex. Crim. App. 1997). When an indictment alleges that an offense occurred on or about a particular date, the accused is put on notice to prepare for proof that the offense happened at any time within the statutory period of limitations. Thomas v. State, 753 S.W.2d 688, 693 (Tex. Crim. App. 1988). The conduct that formed the basis of each count for Avalos could have taken place over multiple dates, or on different dates, not only the date specified in the indictments.
Because Avalos pleaded guilty to both indictments, there was no trial testimony to create a record of the dates each injury occurred.
We conclude that Avalos is not permitted to raise her double jeopardy claim in this appeal because she did not preserve it in the trial court and she failed to show a double jeopardy violation is apparent on the face of the record. See Gonzalez, 8 S.W.3d at 645. We overrule Avalos's first issue.
Disproportionate Sentence
Avalos argues that the trial court erred by assessing a disproportionately severe sentence compared to her co-defendant. She argues that the sentence violates the Eighth Amendment's prohibition against cruel and unusual punishment. See U.S. CONST. amend. VIII. The State responds that Avalos forfeited any challenge to her sentence by failing to preserve the issue, and even if the issue was properly preserved, the trial court acted within its discretion in sentencing her within the statutory range.
A. Standard of Review
We review the trial court's assessment of punishment for an abuse of discretion. Buerger v. State, 60 S.W.3d 358, 363 (Tex. App.—Houston [14th Dist.] 2001, pet. ref'd) (citing Jackson v. State, 680 S.W.2d 809, 814 (Tex. Crim. App. 1984). Generally, we will not disturb a sentence assessed within the proper statutory punishment range. Id.
B. Analysis
The Eighth Amendment of the United States Constitution provides that "cruel and unusual punishment" shall not be inflicted. U.S. CONST. amend. VIII. Texas courts have generally held that a punishment that falls within the limits prescribed by a valid statute is not excessive, cruel, or unusual. See, e.g., State v. Simpson, 488 S.W.3d 318, 323 (Tex. Crim. App. 2016) (noting that "this Court has traditionally held that punishment assessed within the statutory limits . . . is not excessive, cruel, or unusual"); Young v. State, 425 S.W.3d 469, 474 (Tex. App.—Houston [1st Dist.] 2012, pet. ref'd) ("Punishment assessed within the statutory limits is generally not cruel and unusual punishment.").
Generally, to preserve error for appellate review, the record must show that an objection was made to the trial court, the grounds for relief were made with sufficient specificity, and the trial court ruled upon the objection. TEX. R. APP. P. 33.1(a); see also Noland v. State, 264 S.W.3d 144, 151 (Tex. App.—Houston [1st Dist.] 2007, pet. ref'd) (holding that, by failing to object at sentencing hearing or raise complaint in motion for new trial, appellant failed to preserve Eighth Amendment complaint for appeal).
Avalos did not object to the punishment at sentencing. She filed no motion for a new trial. Instead, she raises her challenge for the first time on appeal. Avalos did not preserve her challenge for appellate review.
Even if she had preserved the error, we would hold that Avalos's punishment was not cruel and unusual. Avalos was convicted of a first degree felony offense. See TEX. PENAL CODE § 22.04(e). The statutory punishment range for a first degree felony is five to 99 years or life imprisonment. Id. at § 12.32(a). Avalos's 12-year sentence was within the statutory punishment range. See Young, 425 S.W.3d at 474. We overrule her second issue.
Conclusion
We affirm the judgment of the trial court.
Peter Kelly
Justice Panel consists of Justices Lloyd, Kelly, and Hightower. Do not publish. TEX. R. APP. P. 47.2(b).