Opinion
NUMBERS 13-14-00426-CR
01-07-2016
ERIC DIMICK, Appellant, v. THE STATE OF TEXAS, Appellee.
On appeal from the 319th District Court of Nueces County, Texas.
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Rodriguez and Perkes
Memorandum Opinion by Justice Perkes
Appellant Eric Dimick appeals his conviction for aggravated kidnapping. See TEX. PEN. CODE ANN. § 20.04 (West, Westlaw through 2015 R.S.). The jury found appellant guilty of aggravated kidnapping and sentenced him to sixty years' imprisonment. By six issues, which we construe as five, appellant argues: (1) the trial court erred when it denied his motion for a change of venue; (2) the trial court erred when it denied his motion to quash the indictment; (3) the police investigator's testimony included a legal determination which invaded the province of the jury; (4) the evidence is legally and factually insufficient to support the jury's rejection of his affirmative defense; (5) his sentence of sixty years constitutes cruel and unusual punishment and violates the Eighth Amendment of the United States Constitution and Article 1, section 13 of the Texas Constitution. We affirm.
Appellant was charged by a two count indictment with aggravated kidnapping and aggravated sexual assault of a child. The jury was unable to reach a verdict on the alleged aggravated sexual assault of a child, and the trial court granted a mistrial on that count.1 The record does not indicate whether the State intends to retry appellant on count two, and appellant has not challenged the court's granting of the mistrial. Regardless, the prospective resolution of count two is immaterial to this appeal. See Arrington v. State, 451 S.W.3d 834, 838 n.2 (Tex. Crim. App. 2015); see also Husain v. State, 161 S.W.3d 642, 644 (Tex. App.—San Antonio 2005, pet. ref'd).
I. BACKGROUND
A. Pre-Trial Venue Hearing
Appellant filed a motion for a change of venue, based on allegations of widespread media coverage and resulting prejudice. See TEX. CODE CRIM. PROC. ANN. art. 31.03 (West, Westlaw through 2015 R.S.). Along with his motion, appellant filed affidavits from six qualified potential jurors from Nueces County. All affiants opined that appellant would be unable to receive a fair trial in Nueces County, ostensibly because media coverage created a bias against him.
During the hearing on appellant's motion to transfer venue, appellant called seven witnesses who testified generally about the pre-trial coverage, specifically on television and in newspapers. Appellant's previous defense attorney and the attorney for co- defendant Colton Visor testified that they did not believe appellant could receive a fair trial in Nueces County based on discussions with the community and the media coverage. The attorneys, however, acknowledged the news coverage fairly and accurately reported on the respective court proceedings and the testimony during the pendency of the case. Pastor Grover Pinson testified that his discussions with his congregation and the community indicated that everyone presumed appellant was guilty. Appellant also introduced testimony and exhibits of news coverage posted on media websites. The online comments following the posted news articles generally reflected a negative perception of appellant and included statements regarding the punishment wished upon appellant.
The State offered two controverting affidavits as well as the testimony of two affiants, the Chief Deputy of Operations for the Nueces County Jail and the court administrator for Nueces County. The Chief Deputy testified that he did not read the online comments following the media coverage and believed that appellant could get a fair trial in Nueces County. The court administrator testified that none of the prospective jurors she dealt with while empaneling juries asked her any questions or expressed opinions about appellant's case. The trial court denied appellant's motion to transfer venue.
B. Trial
During the trial, the State presented evidence that appellant, along with Jacob Musich and Visor, stopped Musich's suburban close behind the eleven year old complainant and her thirteen year old brother. The complainant, who was on her bicycle, and her brother were walking their dog as appellant jumped out of the back of the suburban, grabbed the complainant, covered her with a jacket, and returned to the vehicle. The complainant resisted, and appellant dropped her. Musich picked up the complainant, shoved her into the vehicle, and the three men tied up and blindfolded the complainant and drove to Padre Island. The trio parked on the beach and Musich sexually assaulted the complainant. After the sexual assault, the complainant was released on an unlit portion of a Padre Island beach access road. It was after sunset and dark as the complainant ran along the access road towards park road 22. There were no other cars on the access road, but she saw traffic ahead on the park road. A driver spotted the complainant as she jumped in front of his pickup truck, screaming for him to stop. She was hysterical and wanted to speak to her mother. The complainant was without shoes, and the night was cool.
The trial court severed the cases filed against appellant and co-defendant, Colton Visor, from the case filed against the other co-defendant, Jacob Musich. Co-defendant Visor pled guilty pursuant to a plea-bargain agreement.
Appellant testified at trial. According to appellant, he was smoking synthetic marijuana preceding and throughout the abduction and sexual assault. He explained that after the sexual assault, as they were driving away from the beach back into the city, the complainant asked to get out of the vehicle. Musich stopped the vehicle and let the complainant out on a quarter-mile long beach access road connecting Park Road 22 to the beach at Padre Island. Shortly after releasing the complainant, Musich's vehicle ran out of gas, so appellant, Musich, and Visor pushed the suburban to a motel on Park Road 22. After parking the suburban, the three men hid in the tall beach grass behind a motel for several hours, then pushed the suburban to a gas station.
Appellant conceded that he participated in the complainant's abduction and that he had driven Musich's vehicle at different times throughout the abduction and sexual assault. The jury found appellant guilty of aggravated kidnapping and sentenced him to sixty years' imprisonment. Appellant did not object to the sentence and did not file a motion for a new trial. This appeal followed.
II. VENUE
By his first issue, appellant argues the trial court erred when it denied his motion for a change of venue. Specifically, appellant argues he was "faced with an unrelenting publicity before trial which created an atmosphere through the local media blogs that was so inherently prejudicial as to preclude a fair trial."
A. Applicable Law and Standard of Review
Article 31.03(a)(1) of the Texas Code of Criminal Procedure provides that a change of venue may be granted on a defendant's motion if "there exists in the county where the prosecution is commenced so great a prejudice against him that he cannot obtain a fair and impartial trial." Bell v. State, 938 S.W.2d 35, 46 (Tex. Crim. App. 1996) (en banc) (citing TEX. CODE CRIM. PROC. ANN. art. 31.03 (West, Westlaw through 2015 R.S.)). When outside influences affecting the community's climate of opinion regarding a defendant are inherently suspect, the resulting probability of unfairness requires suitable procedural safeguards, such as a change of venue, to assure a fair and impartial trial. Id. (citing Henley v. State, 576 S.W.2d 66, 71 (Tex. Crim. App. 1978)).
A defendant is entitled to a change of venue if he can show community influences which could affect the answers on voir dire or the testimony of witnesses at trial, or any other reason a jury cannot be fair and impartial. Id. at 72. Media attention and publicity do not, however, automatically establish prejudice or require a change of venue; jurors do not have to be totally ignorant of the facts and issues of a particular case. Teague v. State, 864 S.W.2d 505, 509 (Tex. Crim. App. 1993), abrogated by Robertson v. State, 871 S.W.2d 701, 712 n.13 (Tex. Crim. App. 1993). Rather, publicity about the case must be pervasive, prejudicial, and inflammatory. Beets v. State, 767 S.W.2d 711, 743 (Tex. Crim. App. 1987).
The trial court may use voir dire to help gauge the community climate; however, regardless of the successful qualification of a jury panel, the evidence adduced during the venue hearing may show that a change of venue is necessary to assure a fair trial. Henley, 576 S.W.2d at 71. An appellate court will not reverse a trial court's denial of a motion to change venue absent an abuse of discretion. Penry v. State, 903 S.W.2d 715, 727 (Tex. Crim. App. 1995).
B. Discussion
The complained-of newspaper articles and television news clips summarized the history of the case, including the guilty pleas from the two co-defendants. The only potentially inflammatory information came from some of the blogs posted online following the news stories. However, the posted comments were not reflective of the opinions of the jury panel. Of the 300 member panel, only one venire member wrote any social media response to appellant's case. The news articles and television broadcasts were accurate and objective and were not inflammatory, pervasive, or prejudicial. We do not agree with appellant that the media attention surrounding his case, viewed as a whole, was inflammatory and prejudicial. The affidavits and testimony offered by the State adequately controverted appellant's assertions and countered that publicity surrounding appellant's case had been fair, not inflammatory, and had not fostered any hostile public attitude toward appellant.
A review of the jury panel general voir dire process also supports the trial court's ruling. Using the jury selection process to gauge the tenor of the community as a whole, the trial court could have found there was no pervasive public prejudice against appellant. Although appellant points to the ninety-one panel members who admitted to forming an opinion about the case,
complaints about the large number of venire members who had knowledge of the case, or who had formed an opinion about the case, are not sufficient to warrant a change of venue: That there were a large number of venire members who had heard of the case, or who could not set aside their opinions about the case, does not establish that pretrial publicity permeated the community to such an extent that it was impossible to seat a fair and impartial jury.Freeman v. State, 340 S.W.3d 717, 724-25 (Tex. Crim. App. 2011); see also Gonzalez v. State, 222 S.W.3d 446, 452 (Tex. Crim. App. 2007) ("Although a large number of panelists were disqualified for cause because they were not able to set aside their opinion of appellant's guilt, those circumstances do not require a conclusion that the publicity was inflammatory or prejudicial.").
We conclude the trial court did not abuse its discretion in denying appellant's motion to change venue. See Penry, 903 S.W.2d at 727. We overrule appellant's first issue.
III. INDICTMENT
By his second issue, appellant alleges the trial court erred by denying his motion to quash count one of the indictment. Specifically, appellant argues that the "duplicitous indictment" violated his due process rights under the federal and state constitutions and that the indictment is defective due to the addition of a definition not provided for by the Texas Penal Code.
Appellant was indicted for aggravated kidnapping and aggravated sexual assault of a child:
Count I
[D]efendants, acting alone or in concert with the others, on or about December 27, 2012, in Nueces County, Texas, did then and there, with the intent to facilitate the commission of a felony, to wit: aggravated sexual assault of a child, or with the intent to violate or abuse sexually [complainant] intentionally or knowingly abduct [complainant] by restricting the movements of said [complainant] without her consent so as to interfere substantially with her liberty, by moving her from one place to another, with the intent to prevent her liberation, by secreting or holding her in a place where she was not likely to be found;
Count II
[D]efendants, acting alone or in concert with the others, on or about December 27, 2012, in Nueces County, Texas, did then and there intentionally and knowingly cause the penetration of the female sexual organ of [complainant] a child younger than 14 years of age, by a male sexual organ[.]
A. Standard of Review
The sufficiency of an indictment is a question of law. State v. Moff, 154 S.W.3d 599, 601 (Tex. Crim. App. 2004). When the issue disputes the sufficiency of the indictment, appellate courts conduct a de novo review. See id.; see also Nix v. State, 401 S.W.3d 656, 661 (Tex. App.—Houston [14th Dist.] 2013, pet. ref'd); Trevino v. State, 228 S.W.3d 729, 734 (Tex. App.—Corpus Christi 2006, pet. ref'd).
B. Applicable Law
The right to notice is set forth in both the United States and Texas Constitutions. See U.S. CONST. amend. VI; TEX. CONST. art. I, § 10. The indictment must be specific enough to inform the defendant of the nature of the accusations against him so that he may prepare a defense. Moff, 154 S.W.3d at 601. An indictment is generally sufficient to provide notice if it follows the statutory language. Curry v. State, 30 S.W.3d 394, 399 (Tex. Crim. App. 2000). But tracking the language of the statute may be insufficient if the statutory language is not completely descriptive, so that more particularity is required to provide notice. Id. For example, when a statute defines the manner or means of commission in several alternative ways, an indictment will fail for lack of specificity if it neglects to identify which of the statutory means it addresses. Id.
"Duplicity" is a technical fault of uniting two or more distinct and separate offenses in the same count of an indictment. Lebo v. State, 100 S.W.3d 417, 421-22 (Tex. App.—San Antonio 2002, pet. ref'd); see Gahl v. State, 721 S.W.2d 888, 895 (Tex. App.—Dallas 1986, pet. ref'd); TEX. CODE CRIM. PROC. ANN. art. 21.24(b) (West, Westlaw through 2015 R.S.). The rule against duplicitous indictments is based on the proposition that a defendant must receive fair notice of the charge against which he must defend. Lebo, 100 S.W.3d at 422; see Galvan v. State, 699 S.W.2d 663, 666 (Tex. App.—Austin 1985, pet. ref'd), abrogated by Wood v. State, 299 S.W.3d 200, 212 n.8 (Tex. App.—Austin 2009, pet. ref'd).
C. Discussion
1. Duplicity
Count one of the indictment charges appellant with aggravated kidnapping. Aggravated kidnapping is abduction with the intent to: (1) hold her for ransom; (2) facilitate the commission of a felony; or (3) inflict bodily injury on her or violate her sexually. See TEX. PENAL CODE ANN. § 20.04(a) (defining "aggravated kidnapping"). "Abduct" means to restrain a person with intent to prevent her liberation by: (1) secreting or holding her in a place where she is not likely to be found; or (2) using or threatening to use deadly force. See id. § 20.01(2) (West, Westlaw through 2015 R.S.). "Restrain" means to restrict a person's movements without consent, so as to interfere substantially with the person's liberty, by moving the person from one place to another or by confining the person. See id. § 20.01 (1).
Appellant's argument of duplicity fails. Count one of the indictment did not charge appellant with multiple offenses—aggravated kidnapping and sexual assault of a child—rather, the offense of sexual assault of a child is the felony that the State alleged appellant intended to facilitate through the abduction. Therefore, the indictment, which tracked the language of the Penal Code under which appellant was charged, alleged a single offense and was not duplicitous. See Lebo, 100 S.W.3d at 421-22.
2. Manner and Means
Appellant further argues that count one of the indictment included multiple definitions of "abduction" and that he did not have notice of what specific "manner and means" the State intended to prove, thereby violating his due process rights. Appellant's argument misconstrues the indictment.
Of the two statutory "manner and means" of engaging in abduction, the indictment alleges one—that appellant abducted the complainant by secreting or holding her in a place where she is not likely to be found. See Curry, 30 S.W.3d at 403 ("[T]he State must allege, in the face of a motion to quash, which type of abduction it seeks to prove in order to give the defendant notice."). The indictment incorporated the statutory definition of "restraint" into the statutory definition of "abduction" by stating: "[D]efendants . . . intentionally or knowingly abduct Lee Hailey, pseudonym, by restricting the movements of said Lee Hailey, pseudonym, without her consent so as to interfere substantially with her liberty, by moving her from one place to another . . . ." (Emphasis added.)
Contrary to appellant's assertions, the language included in the indictment tracked the statutory text of the offense, albeit from two statutory sections. Though unnecessary, the addition is not fatal to the indictment. See State v. Barbernell, 257 S.W.3d 248, 251 (Tex. Crim. App. 2008) ("When a statutory term or element is defined by statute, the charging instrument does not need to allege the definition of the term or element.").
We conclude the indictment was not defective and sufficiently provided appellant adequate notice of the charges against him. Appellant's second issue is overruled.
IV. EVIDENTIARY CHALLENGE
By his third issue, appellant argues the police detective's testimony that the complainant was not left in a safe place was inadmissible and caused harmful error. Specifically, appellant argues that the trial court improperly allowed the detective to give expert opinion testimony on the ultimate issue of safe release. The State responds that the detective was not offered as an expert, and instead his testimony was offered as a lay-witness opinion under Rule 701.
A. Preservation
Preservation of error is a systemic requirement that a first-level appellate court should ordinarily review on its own motion. See Archie v. State, 221 S.W.3d 695, 698 (Tex. Crim. App. 2007) (citing Jones v. State, 942 S.W.2d 1, 2 n. 1 (Tex. Crim. App. 2007) (en banc)). The Texas Court of Criminal Appeals recognized that, because rule 704 permits the admission of an opinion on the ultimate issue, an objection that testimony "'invades the province of the jury' is no longer a valid objection to opinion testimony." Hurst v. State, 406 S.W.3d 617, 621-22 (Tex. App.—Eastland 2013, no pet.) (quoting Ortiz v. State, 834 S.W.2d 343, 348 (Tex. Crim. App. 1992), superseded by statute, Act of May 28, 1989, 71st Leg., R.S., ch. 785, § 4.04(a), 1989 Tex. Gen. Laws 3492 (effective Sept. 1, 1989), as recognized in Ellison v. State, 201 S.W.3d 714 (Tex. Crim. App. 2006)); see TEX. R. EVID. 704.
Many Texas courts have concluded that the "province of the jury" objection is simply too imprecise to preserve error. Hurst, 406 S.W.3d at 622; see, e.g., Mock v. State, 848 S.W.2d 215, 225 (Tex. App.—El Paso 1992, pet. ref'd). Therefore, the question is whether the objection was sufficiently specific "to make the trial court aware of the complaint, unless the specific grounds were apparent from the context." Hurst, 406 S.W.3d at 622; see TEX. R. APP. P. 33.1(a)(1)(A).
B. Standard of Review
We review a trial court's decision to admit or exclude evidence for an abuse of discretion. Torres v. State, 71 S.W.3d 758, 760 (Tex. Crim. App. 2002) (citing Burden v. State, 55 S.W.3d 608, 615 (Tex. Crim. App. 2001)). We will not reverse the trial court's ruling unless the ruling falls outside the zone of reasonable disagreement. Torres, 71 S.W.3d at 760; see also Taylor v. State, 268 S.W.3d 571, 579 (Tex. Crim. App. 2008) (providing that a trial court abuses its discretion only if its decision is "so clearly wrong as to lie outside the zone within which reasonable people might disagree"). In applying the abuse of discretion standard, we may not reverse a trial court's admissibility decision solely because we disagree with it. See Powell v. State, 63 S.W.3d 435, 438 (Tex. Crim. App. 2001). We will not disturb a trial court's evidentiary ruling if it is correct on any theory of law applicable to that ruling. De La Paz v. State, 279 S.W.3d 336, 344 (Tex. Crim. App. 2009).
C. Applicable Law
A witness can testify in the form of an opinion under Rule 701 if the opinions or inferences are (a) rationally based on his or her perceptions and (b) helpful to the clear understanding of the testimony or the determination of a fact in issue. Osbourn v. State, 92 S.W.3d 531, 535 (Tex. Crim. App. 2002) (citing Fairow v. State, 943 S.W.2d 895, 898 (Tex. Crim. App. 1997) (en banc)). As a general rule, observations which do not require significant expertise to interpret and which are not based on a scientific theory can be admitted as lay opinions if the requirements of Rule 701 are met. Rule 702 provides:
A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue.TEX. R. EVID. 702.
"When a witness who is capable of being qualified as an expert testifies regarding events which he or she personally perceived, the evidence may be admissible as both Rule 701 opinion testimony and Rule 702 expert testimony." Osbourn, 92 S.W.3d at 537. "A person with specialized knowledge may testify about his or her own observations under Rule 701 and may also testify about the theories, facts and data used in his or her area of expertise under Rule 702." Id. Therefore, although police officers have training and experience, they may offer lay testimony regarding events which they have personally observed. Id.
D. Discussion
The testimony at issue comes from Detective Alvarado who investigated the crime scenes and interrogated appellant, Musich, and Visor. Detective Alvarado's direct examination prompted the following exchange:
[STATE]: In your experience of 20 years as a police officer, was that child left in a safe place?
[ALVARADO]: Absolutely not.
[DEFENSE COUNSEL]: Excuse me, Your Honor, I'm going to object. That's a question that is left for the jury to decide based on the facts. His testimony, his opinion, is nothing but an opinion and it has no basis in
this court. If that issue comes before this Court for this jury, then they will decide based on the facts.
THE COURT: And I'll allow you to cross examine him; but I'll overrule your objection.
It is evident that the objection is directed at Detective Alvarado's opinion regarding appellant's affirmative defense of safe release. Appellant, however, failed to state specific grounds for his objection, and no specific grounds are apparent from the context of the record. See Hurst, 406 S.W.3d at 622; TEX. R. APP. P. 33.1(a)(1)(A). Further, the phrase, "a question that is left for the jury to decide," is akin to an invades-the-province-of-the-jury objection, which is insufficiently specific to preserve error. See Hurst, 406 S.W.3d at 623. Thus, we conclude that appellant has waived his complaint for review on appeal.
However, even if error was preserved, we note that Texas courts permit police officers to testify as both an expert and a lay witness. Thomas v. State, 916 S.W.2d 578, 581 (Tex. App.—San Antonio 1996, no pet.) (explaining that police officer qualified as both lay opinion and expert witness to testify regarding operation of a "crack" house); Ventroy v. State, 917 S.W.2d 419, 422 (Tex. App.—San Antonio 1996, pet. ref'd) (determining that police officer was permitted to testify under Rules 701 and 702 based on experience and personal knowledge about the scene of the accident); Yohey v. State, 801 S.W.2d 232, 243 (Tex. App.—San Antonio 1990, pet. ref'd) (holding that a police officer's testimony regarding time of death was admissible under both Rule 701 and 702); Austin v. State, 794 S.W.2d 408, 409-411 (Tex. App.—Austin 1990, pet. ref'd) (concluding that a police officer testified under Rules 701 and 702 that, based on his experience and observation, "Swedish Deep Muscle Rub" was a term for prostitution).
We conclude the trial court did not abuse its discretion in allowing Detective Alvarado to testify regarding his opinion on the issue of safe release. See Torres, 71 S.W.3d at 760. We overrule appellant's third issue.
V. SUFFICIENCY OF THE EVIDENCE
By his fourth and fifth issues, appellant argues the jury's rejection of his affirmative defense of safe release was legally and factually insufficient.
A. Standard of Review
Appellant's sufficiency claim is evaluated for both legal and factual sufficiency. See Butcher v. State, 454 S.W.3d 13, 20 (Tex. Crim. App. 2015) ("Affirmative defenses may be evaluated for legal and factual sufficiency, even after this Court handed down its opinion in Brooks v. State, 323 S.W.3d 893 (Tex. Crim. App. 2010)."). In a legal-sufficiency review of an affirmative defense, reviewing courts should first assay the record for a scintilla of evidence favorable to the factfinder's finding and disregard all evidence to the contrary unless a reasonable factfinder could not. Id. (citing Matlock v. State, 392 S.W.3d 662, 669-70 (Tex. Crim. App. 2013)). The finding of the factfinder rejecting a defendant's affirmative defense should be overturned for lack of legal sufficiency only if the appealing party establishes that the evidence conclusively proves his affirmative defense, and "no reasonable [factfinder] was free to think otherwise." Id. (citing Matlock, 392 S.W.3d at 670).
"In a factual-sufficiency review of a finding rejecting an affirmative defense, and unlike in a legal-sufficiency review, courts examine the evidence in a neutral light." Id. (quoting Matlock, 392 S.W.3d at 671). "A finding rejecting a defendant's affirmative defense cannot be overruled unless, 'after setting out the relevant evidence supporting the verdict, the court clearly states why the verdict is so much against the great weight of the evidence as to be manifestly unjust, conscience-shocking, or clearly biased.'" Id. (citing Matlock, 392 S.W.3d at 670).
B. Applicable Law
Aggravated kidnapping is a first-degree felony punishable by a term of imprisonment between five years to life. TEX. PENAL CODE ANN. §§ 12.32(a), 20.04(c) (West, Westlaw through 2015 R.S.). Section 20.04(d) provides: "At the punishment stage of a trial, the defendant may raise the issue as to whether he voluntarily released the victim in a safe place. If the defendant proves the issue in the affirmative by a preponderance of the evidence, the offense is a felony of the second degree." TEX. PENAL CODE ANN. § 20.04(d); accord Posey v. State, 966 S.W.2d 57, 63 (Tex. Crim. App. 1998) (en banc). A second-degree felony is punishable by a term of imprisonment between two and twenty years. Id. § 12.33(a).
The statute requires the defendant to prove voluntary release in a safe place by a preponderance of the evidence, a lesser standard of proof than is required during the guilt-innocence phase of a criminal trial. See Hacker v. State, 389 S.W.3d 860, 865 (Tex. Crim. App. 2013). To satisfy this standard, the defendant must create, by the greater weight of the credible evidence, a reasonable belief that the defendant voluntarily released the victim in a safe place. See Scamardo v. State, 517 S.W.2d 293, 298 (Tex. Crim. App. 1974).
Section 20.04 requires proof the accused "'performed some overt and affirmative act' which brought home to his victim that she had been fully released from captivity." Harrell v. State, 65 S.W.3d 768, 772 (Tex. App.—Houston [14th Dist.] 2001, pet. ref'd). "That release must have occurred in a place and manner which realistically conveyed [to the victim] that she was then freed from captivity and in circumstances and surroundings wherein aid was readily available." Id.; accord Woods v. State, 301 S.W.3d 327, 331 (Tex. App.—Houston [14th Dist.] 2009, no pet.).
Factors to consider in determining whether the defendant released the victim in a safe place include the following: (1) the remoteness of the location; (2) the proximity of authorities or persons who could aid or assist; (3) the time of day; (4) climatic conditions; (5) the condition of the victim; (6) the character of the location or surrounding neighborhood; and (7) the victim's familiarity with the location or surrounding neighborhood. Woods, 301 S.W.3d at 331-32; accord West v. State, 406 S.W.3d 748, 766 (Tex. App.—Houston [14th Dist.] 2013, pet. ref'd); Lavarry v. State, 936 S.W.2d 690, 696 (Tex. App.—Dallas 1996, pet. ref'd).
C. Discussion
The parties do not dispute that the complainant was voluntarily released; the issue is whether she was released in a safe place. Appellant argues that the complainant was released unharmed in the vicinity of Bob Hall pier and was quickly able to reach a major road where she found someone who assisted her. He contends that the complainant was near a middle-class neighborhood and was familiar enough with the area where she was released to seek aid. Appellant's argument fails.
The State presented evidence that an eleven-year-old girl was left alone on a dark December night on an unfamiliar road that was a considerable distance from where she was abducted. According to the driver who stopped to assist the complainant, the area where he found her was desolate and "pitch dark." See Rodriguez v. State, 766 S.W.2d 360, 361 (Tex. App.—Texarkana 1989, pet. ref'd) (concluding that a fourteen-year-old victim who was sexually assaulted was not released in a safe place when released during a winter night on a rural dirt road a few minutes' walk from a gas station when it was unknown if she would receive help from the station attendant). That she received prompt assistance from a good Samaritan was fortuitous. See Rodriguez-Flores v. State, 351 S.W.3d 612, 637 (Tex. App.—Austin 2011, pet. ref'd) ("[Complainant's] good fortune in being found by Mora and safely returned to his family does not mean that the apartment complex was a safe place for the boy under the circumstances."). The jury also heard testimony that the beach was unsafe based on criminal and drug activity, especially at night. See Woods, 301 S.W.3d at 332 (concluding that an adult female victim released on Galveston beach was not released in a safe place because "the location of release was sparsely populated, dark, and had been the site of criminal activity").
We conclude the evidence is legally sufficient to support a jury's adverse finding of safe release. See Hacker, 389 S.W.3d at 865. We further conclude the evidence is factually sufficient because the verdict is not so against the great weight of the evidence as to be manifestly unjust, conscience-shocking, or clearly biased. See Butcher, 454 S.W.3d at 20. We overrule appellant's fourth and fifth issues.
VI. CONSTITUTIONAL CHALLENGE
By his sixth issue, appellant argues his sentence of sixty years constitutes cruel and unusual punishment and violates the Eighth Amendment of the United States Constitution and Article 1, section 13 of the Texas Constitution. Specifically, appellant argues that his sentence fails the proportionality test in comparison to punishments for similar offenses in the same jurisdiction.
A. Preservation
Errors that are asserted must generally be brought to the trial court's attention in order to afford the trial court an opportunity to correct the error, if any. Kim v. State, 283 S.W.3d 473, 475 (Tex. App.—Fort Worth 2009, no pet.). 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. TEX. R. APP. P. 33.1(a); Rhoades v. State, 934 S.W.2d 113, 120 (Tex. Crim. App. 1996) (en banc) (holding that a complaint of cruel and unusual punishment under Texas Constitution was waived because defendant presented his argument for first time on appeal). Texas courts have consistently held that a defendant waives a proportionality claim by failing to object in the trial court. See Kim, 283 S.W.3d at 475; Rhoades, 934 S.W.2d at 120; Noland v. State, 264 S.W.3d 144, 151-52 (Tex. App.—Houston [1st Dist.] 2007, pet. ref'd); Wynn v. State, 219 S.W.3d 54, 61 (Tex. App.—Houston [1st Dist.] 2006, no pet.); see also Mercado v. State, 718 S.W.2d 291, 296 (Tex. Crim. App. 1986) (stating that, as a general rule, appellant may not assert error pertaining to his sentence or punishment when he failed to object or otherwise raise such error in the trial court).
B. Discussion
Appellant's complaint about the alleged disproportionality of his sentence was not raised at the time it was imposed or in a motion for new trial. Therefore, he preserved nothing for our review. See Noland v. State, 264 S.W.3d 144, 151-52 (Tex. App.—Houston [1st Dist.] 2007, pet. ref'd); Acosta v. State, 160 S.W.3d 204, 211 (Tex. App.—Fort Worth 2005, no pet.) (holding that a defendant forfeited his Texas constitution-based complaint that his sentence was grossly disproportionate when he failed to raise the issue to the trial court).
However, even if we were to reach the merits of his complaint, appellant acknowledges that the punishment imposed is within the statutory limits and is generally not subject to challenge for excessiveness. See Dale v. State, 170 S.W.3d 797, 799 (Tex. App.—Fort Worth 2005, no pet.). A first-degree felony is punishable by a term of imprisonment for life or for any term of not more than ninety-nine years or less than five years. TEX. PENAL CODE ANN. § 12.32 (West, Westlaw through 2015 R.S.). "Subject only to a very limited, exceedingly rare, and somewhat amorphous Eighth Amendment gross-disproportionality review, a punishment that falls within the legislatively prescribed range, and that is based upon the sentencer's informed normative judgment, is unassailable on appeal." Kim, 283 S.W.3d at 475-76 (citing Ex parte Chavez, 213 S.W.3d 320, 323-24 (Tex. Crim. App. 2006)). We overrule appellant's fifth issue.
VII. CONCLUSION
We affirm the trial court's judgment.
GREGORY T. PERKES
Justice Do not publish.
TEX. R. APP. P. 47.2(b). Delivered and filed the 7th day of January, 2016.