No. 01-09-00051-CR
Opinion issued December 3, 2009. DO NOT PUBLISH. See Tex. R. App. P. 47.2(b).
On Appeal from the 228th District Court, Harris County, Texas, Trial Court Cause No. 1077076.
Panel consists of Justices KEYES, ALCALA and HANKS.
GEORGE C. HANKS, Jr., Justice.
Appellant, Carlos Mendoza, Jr., was charged with sexually assaulting his eleven-year-old daughter by penetrating her anus with his sexual organ. See Act of May 28, 2003, 78th Leg., R.S., ch. 896, § 1, 2003 Tex. Gen. Laws 2721, 2722, and Act of May 29, 2003, 78th Leg., R.S., ch. 528, § 2, 2003 Tex. Gen. Laws 1805, 1806 (amended 2007) (current version at Tex. Penal Code Ann. § 22.021 (Vernon Supp. 2009)). Appellant pleaded guilty without an agreed recommendation and requested a presentence investigation (PSI) hearing. Appellant filed an application for community supervision. After the hearing, the trial court assessed punishment at thirty years in prison. Appellant filed an untimely notice of appeal, and on March 1, 2007, this Court issued a memorandum opinion dismissing the appeal. Mendoza v. State, No. 01-07-00067-CR, 2007 WL 625029 (Tex. App.-Houston [1st Dist.] Mar. 1, 2007, no pet.) (mem. op., not designated for publication). Appellant filed a writ of habeas corpus, and the Texas Court of Criminal Appeals granted an out-of-time appeal. Ex parte Mendoza, No. AP-76,058, 2008 WL 5245344 (Tex. Crim. App. Dec 17, 2008). On appeal, appellant argues that it was an abuse of discretion to sentence him to thirty years in prison when he was eligible for community supervision. We affirm.
The 80th Texas Legislature amended Texas Penal Code Section 22.021, adding subsection (f), effective September 1, 2007, which was after the date of the offense. The amendment does not affect the disposition of this case.
Background
In 2006, appellant was charged with aggravated sexual assault of a child, namely "M.M." his eleven-year-old daughter. The complaint alleged that appellant "intentionally and knowingly cause[d] the penetration of the anus of [M.M.] . . . by placing his sexual organ in the anus of the Complainant." The complaint indicated that there were other incidents of sexual abuse beginning when M.M. was nine years old. Appellant pleaded guilty as charged of aggravated sexual assault of a child under 14 years of age, which is a first-degree felony. During the PSI Hearing, appellant stated that when he was initially questioned by Child Protective Services (CPS) about the incident, he denied the allegations. Appellant stated that later he told CPS that if anything had happened, it may have been while he was sleepwalking. Appellant's PSI report was prepared by Donna Hood with the Harris County Probation Department. When appellant met with Hood, he made his improper relationship with his daughter sound as if his daughter was the one "making the first move." Appellant stated that his daughter initiated the improper relationship because she was previously abused by appellant's exwife's boyfriend. Appellant stated that on all of the incidents of sexual abuse, his daughter had initiated the sexual conduct, and it was his bad judgment to let it happen. Appellant testified that his bad judgment stemmed from a one-time incident when he claims he was sexually abused by his aunt when he was ten years old. Appellant said his aunt made him "touch her" and "she also fondled — touched [him] also." He stated the incident with his aunt has affected his mind as an adult and caused him to "start getting . . . [p]ornography magazines" and "Playboy magazines" from the time of the occurrence up until now — twenty-two years. Appellant testified that now he "seek[s] the Lord and [he] accepted him as [his] savior." He testified that his spirituality and counseling have changed him. Appellant stated that he missed his four daughters and son, and he regretted that he was not able to attend their birthday parties. Appellant testified that he "accept[ed] responsibility" for what he has done. He testified that he understood and accepted that he could go to jail. Appellant requested deferred adjudication probation from the trial court, though he acknowledged that society needed to be protected from him. The punishment for a first-degree felony is confinement for life or any term of not more than ninety-nine years or less than five years and, in addition to imprisonment, punishment by a fine not to exceed $10,000. See Act of May 29, 1993, 73d Leg., R.S., ch. 900, § 1.01, 1993 Tex. Gen. Laws 3586, 3603 (amended 2009) (current version at Tex. Penal Code Ann. § 12.32 (Vernon Supp. 2009)). The trial court assessed appellant's punishment at thirty years in prison. Appellant thanked the trial court after the announcement of the sentence and did not object. Analysis
"[A] punishment that falls within the legislatively prescribed range, and that is based upon the sentencer's informed normative judgment, is unassailable on appeal." Ex parte Chavez, 213 S.W.3d 320, 324 (Tex. Crim. App. 2006). The sentencer's discretion to impose any punishment within the prescribed range is "essentially unfettered," subject only to a very limited and rare Eighth Amendment gross-disproportionality review. Id. at 323-24. Appellant does not challenge the sentence on Eighth Amendment gross-disproportionality grounds. Here, appellant was convicted of aggravated sexual assault of a child under fourteen years of age, which is a first-degree felony. See Act of May 28, 2003, 78th Leg., R.S., ch. 896, § 1, 2003 Tex. Gen. Laws 2721, 2722, and Act of May 29, 2003, 78th Leg., R.S., ch. 528, § 2, 2003 Tex. Gen. Laws 1805, 1806 (amended 2007) (current version at Tex. Penal Code Ann. § 22.021 (Vernon Supp. 2009)). The statutory range of punishment for a first-degree felony is confinement for life or any term of not more than ninety-nine years or less than five years and, in addition to imprisonment, punishment by a fine not to exceed $10,000. Act of May 29, 1993, 73d Leg., R.S., ch. 900, § 1.01, 1993 Tex. Gen. Laws 3586, 3603 (amended 2009) (current version at Tex. Penal Code Ann. § 12.32 (Vernon Supp. 2009)). Appellant concedes that his sentence in this case is a legal, and thus, we could leave the decision undisturbed. However, appellant argues that this Court's supervisory authority allows it the opportunity to "encourage a policy of favoring restorative justice" and this Court should incorporate the policy into the abuse of discretion standard. Appellant has cited no authority which allows this Court to take such action. As stated in his brief, appellant's sentence falls well within the statutory range of punishment, and appellant does not allege that the trial court was misinformed. Accordingly, we have no authority to disturb the trial court's assessment of punishment. See Ex parte Chavez, 213 S.W.3d at 324 (holding punishment within legislatively prescribed range, and based upon sentencer's informed normative judgment, is unassailable on appeal). We overrule appellant's only issue on appeal. Conclusion
We affirm the judgment of the trial court.