Opinion
NUMBER 13-16-00040-CR
06-22-2017
CODY WAYNE OWENS, Appellant, v. THE STATE OF TEXAS, Appellee.
On appeal from the 66th District Court of Hill County, Texas.
MEMORANDUM OPINION Before Chief Justices Valdez and Justices Longoria and Hinojosa
Memorandum Opinion by Justice Hinojosa
This appeal was transferred to this Court from the Tenth Court of Appeals by order of the Texas Supreme Court. See TEX. GOV'T CODE ANN. § 22.220(a) (West, Westlaw through Ch. 8 2017 R.S.) (delineating the jurisdiction of appellate courts); id. §73.001 (West, Westlaw through Ch. 8 2017 R.S.) (granting the supreme court the authority to transfer cases from one court of appeals to another at any time that there is "good cause" for the transfer).
Appellant, Cody Wayne Owens, pleaded guilty to burglary of a habitation, a second-degree felony. See TEX. PENAL CODE ANN. § 30.02 (West, Westlaw through Ch. 8 2017 R.S.). The trial court sentenced appellant to seventeen years' imprisonment in the Texas Department of Criminal Justice—Institutional Division. By two issues, which we treat as one, appellant argues the trial court abused its discretion in assessing punishment at seventeen years' imprisonment because it failed to consider mitigating factors and the trial court's sentence constitutes "cruel and unusual punishment" in violation of the Eighth Amendment. See U.S. CONST. amend. VIII. We affirm.
I.BACKGROUND
Appellant was indicted for burglary of a habitation. Appellant pleaded guilty, and a punishment hearing was held before the trial court. The complainant, Benjamin Jay Lucas, Jr., testified that his home was burglarized. A gun safe that held guns, jewelry, and personal documents was taken. In addition to Lucas's testimony, the trial court considered the contents of a pre-sentence investigation report. The trial court sentenced appellant to seventeen years' imprisonment and ordered restitution damages, including court costs, in the amount of $14,616.00. Appellant filed a "Motion for New Trial and Motion on Arrest of Judgment", which were overruled by operation of law. This appeal followed.
The actual report is not included in the record on appeal.
II.STANDARD OF REVIEW AND APPLICABLE LAW
We review a trial court's sentencing under an abuse of discretion standard. Jackson v. State, 680 S.W.2d 809, 814 (Tex. Crim. App. 1984). A trial judge is given wide latitude to determine the appropriate sentence in a given case. Id. A higher court will not step into the shoes of the trial court and substitute its judgment in place of the trial court unless the trial court has clearly abused its discretion. Tapia v. State, 462 S.W.3d 29, 46 (Tex. Crim. App. 2015). As a general rule, the trial court's reasonable judgment is unassailable on appeal if the punishment falls within the legislatively prescribed range. See Ex Parte Chavez, 213 S.W.3d 323-324 (Tex. Crim. App. 2006); Benavides v. State, 741 S.W.2d 576, 577 (Tex. App.—Corpus Christi 1987, pet. ref'd) (explaining that as long as a sentence is assessed within the legislatively determined range, it will not be disturbed on appeal).
The Eighth Amendment forbids cruel and unusual punishment and prohibits imposition of a sentence that is "grossly disproportionate" to the severity of the crime. See U.S. CONST. amend. VIII.; Ewing v. California, 538 U.S. 11, 21 (2003). However, outside the context of capital punishment, successful challenges to proportionality of particular sentences have been exceedingly rare. Ewing, 538 U.S. 11 at 21; see Solem v. Helm, 463 U.S. 277 (1983) (life imprisonment without parole for grossly disproportionate sentence for crime of uttering a no-account check for $100); Weems v. United States, 217 U.S. 349 (1910) (fifteen years' punishment in a prison camp grossly disproportionate to crime of falsifying a public record); see also Cantu v. State, No. 13-15-00036-CR, 2016 WL 3364968, at *3 (Tex. App—Corpus Christi June 16, 2016, no pet.) (mem. op., not designated for publication) (assuming preservation and rejecting an Eighth Amendment challenge to a sentence of ten years' imprisonment for a conviction of aggravated assault, which is a second-degree felony, punishable by imprisonment between two to twenty years).
III.DISCUSSION
Appellant first argues that the trial court abused its discretion in assessing punishment at seventeen years' imprisonment because the trial court failed to consider mitigating factors. We disagree.
Burglary of a habitation is a second-degree felony punishable by imprisonment between two and twenty years. See TEX. PENAL CODE ANN. § 12.33(a) (West, Westlaw through Ch. 8 2017 R.S.). The trial court's sentence of seventeen years was within the statutory sentencing range. As such, the trial court's sentence is virtually unassailable on appeal. See Ex Parte Chavez, 213 S.W.3d at 323-324. Nevertheless, appellant argues that by commenting that it "remembered when [punishment] was up to life in prison" the trial court showed bias in the instant case. We do not interpret the trial court's comment as an indication that it was unwilling to consider mitigating evidence. To the contrary, the trial court expressly considered mitigating factors when it commented that appellant "somewhat assisted in recovering a few of the [stolen] items." However, the trial court, having considered the testimony of the complainant, expressed concern at the nature of the burglary. The trial court stated, "What in the world, other than drugs, would make someone go to somebody else's house that they don't know, beat a door in, take their gun safe, and violate everything about someone's home. . . ." We conclude the trial court considered mitigating factors and properly exercised its discretion in imposing a sentence within the legislatively-prescribed range.
Next, appellant argues that the punishment is "cruel and unusual punishment" in violation of the Eighth Amendment. See U.S. CONST. amend. VIII. However, appellant did not preserve this issue for review. See TEX. R. APP. P. 33.1. Appellant did not object to his sentence at the hearing and did not assert any constitutional complaints concerning his sentence in his motion for new trial. In his post-trial motions, appellant argued only that the trial court did not consider mitigating factors such as "the defendant did not have a prior felony record in the instant case." Eighth Amendment claims can be waived by the failure to object. See Marin v. State, 851 S.W.2d 275, 279-80 (Tex. Crim. App. 1993), overruled on other grounds by, Cain v. State, 947 S.W.2d 262 (Tex. Crim. App. 1997). This Court has consistently upheld this principle. See Trevino v. State, 174 S.W.3d 925, 927-29 (Tex. App—Corpus Christi 2005, pet. ref'd) (holding that failure to object to the sentence as cruel and unusual forfeits error); see also Cantu, 2016 WL 3364968, at *2. We conclude that by failing to object, appellant has failed to preserve his issue for review on appeal. See TEX. R. APP. P. 33.1.
Appellant includes in the appendix to his brief a "First Amended Motion for New Trial on Punishment and Motion in Arrest of Judgment." This filing is not included in the clerk's record. Documents attached to a brief are not part of the record and will not be considered by this Court. See TEX. R. APP. P. 34.1 ("The appellate record consists of the clerk's record and, if necessary to the appeal, the reporter's record."); Raspberry v. State, 535 S.W.2d 871, 873 (Tex. Crim. App. 1976) ("We note that the documents attached to the pro se brief are not part of the record and cannot be considered by this Court.").
Moreover, even if appellant had preserved this issue, he failed to show how the sentence, which was within the legislatively-prescribed punishment range, was grossly disproportionate to the crime. See U.S. CONST. amend. VIII.; TEX. PENAL CODE ANN. § 12.33(a); Ewing, 538 U.S. at 21. The Texas Court of Criminal Appeals endorses the act of sentencing within statutory limits as "essentially unfettered." Ex parte Chavez, 213 S.W.3d at 323 (quoting Miller—El. V State, 782 S.W.2d 892, 895, 897 (Tex. Crim. App. 1990)). Accordingly, we overrule appellant's issue.
IV.CONCLUSION
We affirm the judgment of the trial court.
LETICIA HINOJOSA
Justice Do not publish.
TEX. R. APP. P. 47.2(b). Delivered and filed the 22nd day of June, 2017.