Opinion
NO. 01-15-00214-CR
01-24-2017
MICHAEL TORO, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 182nd District Court Harris County, Texas
Trial Court Case No. 1330494
MEMORANDUM OPINION
Michael Toro pleaded guilty to murder, a first-degree felony, without a plea bargain or an agreement as to punishment. TEX. PENAL CODE § 19.02(c). After a sentencing hearing, the trial court sentenced Toro to 40-years' confinement in the Texas Department of Criminal Justice, Institutional Division. Toro appeals, arguing that his sentence is grossly disproportionate to the crime committed in violation of the Eighth Amendment's prohibition against cruel and unusual punishment. We affirm.
Background
Toro was charged with and pleaded guilty to the murder of Anayanci Roche without a recommendation as to punishment by the State. Following preparation of a presentence investigation report, the trial court held a sentencing hearing.
Officer J. Duran testified during Toro's sentencing hearing. He testified that in 2011, he was investigating the gang MS-13's activity in Houston, Texas. According to Officer Duran, the police identified Toro as an MS-13 associate before Roche's murder. He testified that MS-13 focuses its recruitment on young teenagers. He stated that some of MS-13's subgroups or "cliques" require recruits to demonstrate their loyalty by completing various criminal "missions" in order to gain membership into MS-13. He testified that Toro was tasked with murdering Roche as his "mission" to gain membership into MS-13's Alaska clique. He explained that members of MS-13 provided Toro with a gun, drove him to Roche's location, and instructed Toro to shoot her. According to Officer Duran, once Toro completed the murder, the Alaska clique of MS-13 would vote him in. He testified that Toro was 16 years old when Roche was murdered.
In its closing, the State presented an audio recording of Toro speaking with homicide investigators. In the recording, Toro describes Roche as a friend who was "like a sister," such that he went to see her the day she came home after giving birth to her son. He initially denies any involvement with her murder. However, Toro later states that members of MS-13 told him that they would make him look bad if he refused to murder Roche. Eventually, he admits that he shot Roche what "felt like four times" when she was sitting in her car. The State introduced an autopsy photograph of Roche's face showing that she was shot in the forehead. According to Toro, he committed the crime to gain membership into MS-13.
At the close of argument, the trial judge sentenced Toro to forty-years' confinement in the Texas Department of Criminal Justice. Toro appealed.
Discussion
In his sole issue, Toro argues that his sentence is grossly disproportionate to the crime he committed and violates the Eighth Amendment's prohibition against cruel and unusual punishment.
A. Standard of Review
We review a sentence imposed by a trial court 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) (en banc)). Generally, we will not disturb a sentence assessed within the proper statutory punishment range. Id.
B. Applicable Law
The Eighth Amendment provides that "cruel and unusual punishments" shall not be inflicted. U.S. CONST. amend. VIII. It requires that a criminal sentence be proportionate to the crime for which a defendant has been convicted. See Solem v. Helm, 463 U.S. 277, 290 (1983); Noland v. State, 264 S.W.3d 144, 151 (Tex. App.—Houston [1st Dist.] 2007, pet. ref'd). 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"); Samuel v. State, 477 S.W.2d 611, 614 (Tex. Crim. App. 1972) ("where the punishment assessed by the judge or jury was within the limits prescribed by the statute the punishment is not cruel and unusual within the constitutional prohibition"); 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."); Ajisebutu v. State, 236 S.W.3d 309, 314 (Tex. App.—Houston [1st Dist.] 2007, pet. ref'd) ("Generally, a sentence within the statutory range of punishment for an offense will not be held cruel or unusual under the Constitution of either Texas or the United States.").
To preserve a complaint of cruel and unusual punishment for appellate review, a defendant must object when his sentence is assessed or file a motion for new trial. See TEX. R. APP. P. 33.1(a); Noland, 264 S.W.3d at 151-52 (holding defendant failed to preserve Eighth Amendment complaint for appeal); Wynn v. State, 219 S.W.3d 54, 61 (Tex. App.—Houston [1st Dist.] 2006, pet. ref'd) (holding that defendant's failure to object that punishment was cruel and unusual waived error); Solis v. State, 945 S.W.2d 300, 301-02 (Tex. App.—Houston [1st Dist.] 1997, pet. ref'd) (holding claim of cruel and unusual punishment could not be raised for the first time on appeal). "The burden is on appellant to see that a sufficient record is presented on appeal to show error." Young, 425 S.W.3d at 474 (quoting Montoya v. State, 872 S.W.2d 24, 25 (Tex. App.—Houston [1st Dist.] 1997, pet. ref'd)). Even most constitutional errors are waived if not properly preserved. Id.
C. Analysis
Toro argues that his sentence is grossly disproportionate to the crime he committed and, thus, violates the Eighth Amendment's prohibition against cruel and unusual punishment. In support, he asserts that (1) he had no criminal record; (2) he was 16 years old when he committed the murder; (3) he was pressured by gang members to commit the offense; and (4) he pleaded guilty, thereby accepting responsibility for his actions. The State responds that Toro waived any challenge to his sentence by not objecting in the trial court or otherwise preserving error and, even if the issue was properly preserved, the trial court acted within its discretion in sentencing Toro within the statutory range.
"[I]n order to preserve for appellate review a complaint that a sentence is grossly disproportionate, constituting cruel and unusual punishment, a defendant must present to the trial court a timely request, objection, or motion stating the specific grounds for the ruling desired." Noland, 264 S.W.3d at 151-52 (holding that, by failing to object at sentencing hearing or raise complaint in motion for new trial, appellant failed to preserve argument that sentence was grossly disproportionate and violated Eighth Amendment); see also TEX. R. APP. P. 33.1(a); Benson v. State, 224 S.W.3d 485, 498 (Tex. App.—Houston [1st Dist.] 2007, no pet.) (en banc) (finding waiver of sentencing complaints and noting that "[a]n appellant must present to the trial court a timely, specific objection and obtain an adverse ruling to preserve for appeal his complaints concerning cruel and unusual punishment and violation of due process rights"). Even constitutional errors may be waived by a failure to object at trial. See Young, 425 S.W.3d at 474.
Toro presents no evidence, and we find none in the record, that he objected to his sentence when it was rendered or in a motion for a new trial. Because Toro did not timely object in the trial court, we conclude that he has not preserved his sentencing complaints for appeal. See TEX. R. APP. P. 33.1(a); Noland, 264 S.W.3d at 151-52.
Notably, Toro's 40-year sentence fell near the middle of the applicable statutory range of punishment for his conviction—murder—which is a first-degree felony punishable by imprisonment for any term of not more than 99 years or less than 5 years and a fine not to exceed $10,000. TEX. PENAL CODE §§ 12.32, 19.02(c); see, e.g., Jacoby v. State, 227 S.W.3d 128, 131-33 (Tex. App.—Houston [1st Dist.] 2006, pet. ref'd) (holding appellant waived challenge to alleged disproportionate sentence because appellant did not object in trial court or through post-trial motion and noting that punishment within statutory limits was not cruel and unusual).
Toro does not argue nor do we find that his sentence resulted from a constitutional violation of the variety so "fundamental" that he was not required to object to preserve error. See Young v. State, 425 S.W.3d 469, 474 (Tex. App.—Houston [1st Dist.] 2012, pet. ref'd) (holding no fundamental error where defendant was convicted of first-degree felony and sentenced on lower end of statutory range of punishment).
We overrule appellant's sole issue.
Conclusion
We affirm the judgment of the trial court.
Rebeca Huddle
Justice Panel consists of Justices Massengale, Brown, and Huddle. Do not publish. TEX. R. APP. P. 47.2(b).