Opinion
NUMBER 13-14-00271-CR
01-14-2016
VICTOR CAMPOS, Appellant, v. THE STATE OF TEXAS, Appellee.
On appeal from the 148th District Court of Nueces County, Texas.
MEMORANDUM OPINION
Before Justices Rodriguez, Garza, and Longoria
Memorandum Opinion by Justice Rodriguez
Upon an open plea of guilty, the trial court found appellant Victor Campos guilty of burglary of a habitation with the intent to commit a felony (robbery) and sentenced him to forty-five years in the Institutional Division of the Texas Department of Criminal Justice.See TEX. PENAL CODE ANN. § 30.02(a)(1), (d) (West, Westlaw through 2015 R.S.); see also id. § 12.32(a) (West, Westlaw through 2015 R.S.) ("An individual adjudged guilty of a felony of the first degree shall be punished by imprisonment in the [TDCJ] for life or for any term of not more than 99 years or less than 5 years."). Campos filed his notice of appeal. On December 4, 2014, Campos's appellate counsel filed an Anders brief in this case. See Anders v. California, 386 U.S. 738, 744-45 (1967). On July 16, 2015, this Court allowed counsel to withdraw, abated the appeal, and ordered the trial court to appoint new counsel to brief any issues counsel believed had merit. Now by one issue, Campos contends that the forty-five year sentence is in violation of the Eighth Amendment when there was no finding of a deadly weapon. See U.S. CONST. amend. VIII, XIV; see also TEX. CONST. art. 1, § 13. We affirm.
Upon open pleas of guilty, the trial court also found Campos guilty of three counts of possession of a controlled substance. Campos v. State, Nos. 13-14-00269, 270, and 272-CR, 2015 WL 4381224, at *1 (Tex. App.—Corpus Christi July 16, 2015, no pet.) (mem. op., not designated for publication) (citing TEX. HEALTH & SAFETY CODE §§ 481.115(b), (c) & 481.121(a), (b)(3) (West, Westlaw through 2015 R.S.)). The trial court sentenced Campos to (1) ten years in the Institutional Division of the Texas Department of Criminal Justice (TDCJ) for possession of cocaine, a third-degree felony; (2) two years in the state-jail division of the TDCJ for possession of cocaine; and (3) two years in the TDCJ's state-jail division for unlawful possession of marijuana. Id. The court ordered all sentences to run concurrently, with credit for time served. Id. On appeal from those judgments, Campos's counsel concluded "the proceedings show no non-frivolous matters that might be successfully appealed." Id. We agreed and affirmed the judgments of the trial court. Id. Mandate issued in each case on September 29, 2015.
I. DISCUSSION
By his sole issue on appeal, Campos contends that his forty-five year sentence is in direct violation of his Eighth Amendment right against cruel and unusual punishment. He also asserts that he preserved his right to appeal this issue by objecting to the sentence on the record when he stated that he did not feel that he deserved such a harsh sentence.
We first address whether Campos preserved this Eighth Amendment complaint. When the sentence imposed is within the punishment range and is not illegal, in order to preserve a complaint that it is grossly disproportionate, constituting cruel and unusual punishment, a defendant must specifically object in the trial court or in a post-trial motion. Noland v. State, 264 S.W.3d 144, 151 (Tex. App.—Houston [1st Dist.] 2007, pet. ref'd); Trevino v. State, 174 S.W.3d 925, 927-28 (Tex. App.—Corpus Christi 2005, pet. ref'd); TEX. R. APP. P. 33.1(a). In other words, an appellant must bring to the trial court's attention the constitutional claim that he raises on appeal. See Reyna v. State, 168 S.W.3d 173, 179 (Tex. Crim. App. 2005); see also Resendez v. State, 306 S.W.3d 308, 312 (Tex. Crim. App. 2009) (discussing rule 33.1(a) and stating that "a party must be specific enough so as to 'let the trial judge know what he wants, why he thinks himself entitled to it, and do so clearly enough for the judge to understand him at a time when the trial court is in a proper position to do something about it'") (quoting Lankston v. State, 827 S.W.2d 907, 909 (Tex. Crim. App. 1992)); see also TEX. R. APP. P. 33.1(a).
Campos asserts that he raised an objection to his sentence through the following exchange:
[THE COURT:] Based upon your pleas of guilty and the evidence presented and your judicial confession the Court finds you guilty of the offense of burglary of a habitation with the intent to commit the offense of robbery in Cause Number 13-CR-2691-E. The Court also finds you guilty of the offenses of possession of cocaine, as charged in 13-CR-2693 and 13-CR-2692, and possession of marijuana in 13-CR-3446. On the burglary case I will set the punishment at 45 years in prison. On the possession of cocaine, third degree I will set the punishment at 10 years in
prison. On the possession of cocaine, the state jail offense, and possession of marijuana, the state jail offense, I will set the punishment each at two years confinement in the state jail. Sir, would you stand, please. Do you have anything to say why these sentences should not now be imposed upon you?
THE DEFENDANT: Yes, sir, Your Honor. I really learned my lesson. I don't think I deserve—I understand what I did and it was wrong, but I don't think I deserve that much time, Your Honor.
THE COURT: No one deserves that much time. No one deserves punishment, but that's what you asked for when you committed these offenses, in my view. Anything else you want to say?
THE DEFENDANT: I just want to apologize to the victim. That's it.
As reflected in this exchange, the trial court informed Campos about the punishment that it was about to impose and sought a response from Campos as to why it should not impose, among others, the forty-five-year sentence. Campos's response appears to be part of an allocution, not an objection to the sentence or sentences to be imposed. Following Campos's comments, the trial court imposed the sentences.
"Allocution" refers to a trial judge's asking a criminal defendant to "speak in mitigation of the sentence to be imposed." A Dictionary of Modern Legal Usage 45 (Bryan A. Garner ed., 2nd ed., Oxford 1995). "By slipshod extension, the word has come to denote the accused person's speech in mitigation of the sentence, rather than the judge's address asking the accused to speak." Id.
Although Campos responded to the trial court's comments regarding the sentences it was considering, his trial counsel did not object when the trial court immediately thereafter imposed the forty-five year sentence for the offense of burglary of a habitation with the intent to commit a felony. And Campos filed no motion for new trial. See Noland, 264 S.W.3d at 151; Trevino, 174 S.W.3d at 927-28. We cannot conclude that, through this exchange, Campos brought to the trial court's attention the constitutional claim he raises on appeal.See Reyna, 168 S.W.3d at 179; see also TEX. R. APP. P. 33.1(a). Accordingly, we conclude that Campos failed to preserve his complaint that the sentence about which he now complains was excessive or disproportionate under the Eighth Amendment. We overrule his appellate issue.
Campos also argues that his earlier requests for the trial court to consider sentencing him to deferred adjudication were enough to preserve error in compliance with rule 33.1. Campos provides no authority to support this preservation argument, and we find none. We are not persuaded by this argument. --------
II. CONCLUSION
We affirm the judgment of the trial court.
NELDA V. RODRIGUEZ
Justice Do not publish.
TEX. R. APP. P. 47.2(b). Delivered and filed the 14th day of January, 2016.