Full Opinion (html_with_citations)

Opinion filed December 15, 2022




                                       In The


        Eleventh Court of Appeals
                                    __________

                              No. 11-21-00162-CR
                                  __________

             RICHARD ANTHONY AMPARAN, Appellant
                                          V.
                     THE STATE OF TEXAS, Appellee


                    On Appeal from the 104th District Court
                            Taylor County, Texas
                        Trial Court Cause No. 21761B


                     MEMORANDUM OPINION
      Appellant, Richard Anthony Amparan, was indicted for the first-degree felony
offense of continuous sexual abuse of a child. See TEX. PENAL CODE ANN. § 21.02
(West Supp. 2022). As a condition of a charge bargain, Appellant entered an open
plea of guilty to the lesser included offense of aggravated sexual assault of a child
and waived his right to a jury trial. See id. § 22.021(a)(1)(B)(i), (2)(B) (West 2019).
After a punishment hearing, the trial court assessed Appellant’s punishment at life
imprisonment in the Texas Department of Criminal Justice, Institutional Division,
and a $10,000 fine.
       Appellant presents a single issue on appeal: that the trial court violated the
Eighth Amendment’s prohibition against excessive fines when it imposed the
maximum sentence of life imprisonment and, without considering his indigent
status, also assessed the maximum fine of $10,000 and attendant court costs against
Appellant. We modify and affirm.
                               I. Factual Background
       After Appellant was indicted for the offense of continuous sexual abuse of a
child, he negotiated a charge bargain with the State and entered an open and
voluntary plea of guilty to the lesser included offense of aggravated sexual assault
of a child. The trial court accepted Appellant’s plea and ordered that a presentence
investigation report (PSI) be prepared before the punishment hearing.
       At the punishment hearing, the trial court took judicial notice of the PSI. The
State presented the victim as a witness. Appellant presented two witnesses; he also
testified.   At the conclusion of the punishment hearing, the trial court found
Appellant guilty of aggravated sexual assault of a child, assessed punishment, and
sentenced Appellant accordingly.
       A. Testimony of S.A.
       S.A. is Appellant’s daughter and the victim of the charged offense; she was
eleven years old when she testified at the punishment hearing. S.A. was reluctant to
revisit what Appellant had done to her. She stated that she did not deserve to be
sexually abused and that she wanted the trial court, when considering Appellant’s
punishment, “to think about” what Appellant had done to her.




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      B. Testimony of Esaveal Sandate
      Esaveal Sandate is Appellant’s younger sister.         Sandate testified that
Appellant had always been a kind and caring brother. According to Sandate,
Appellant is “very responsible,” “very respectful,” and “very quiet.” Although what
S.A. endured was tragic, Sandate believed that Appellant would positively change
and become a better person if he received counseling and was granted probation.
      C. Testimony of Wendie Crabtree
      Wendie Crabtree is Sandate’s wife. Crabtree testified that Appellant is a “very
hardworking man.” According to Crabtree, Appellant deserved probation because
“he’s a very dependable, reliable man” who has changed and acknowledged that
what “he [did] was wrong.” Crabtree stated that Appellant would comply with the
rules of probation.
      D. Testimony of Appellant
      Appellant generally accepted responsibility for abusing S.A. and testified that
he should have “done better to take care of [S.A.] instead of abus[ing] her.”
Although the investigation and PSI revealed otherwise, Appellant denied that he
committed certain acts of abuse against S.A., i.e., engaging in oral sex, engaging in
anal sex, and displaying pornographic images.
      Appellant stated that he began sexually abusing S.A. when she was nine years
old. Appellant asked the trial court to grant probation so that he could “become a
better person and . . . better member of society.” Appellant had successfully
completed deferred adjudication probation in the past and believed that he could
again. Appellant even offered to terminate his parental rights if S.A.’s mother
requested that he do so.




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                                   II. Analysis
      A. Preservation
      As a threshold matter, the State contends that Appellant waived his objection
to the alleged unconstitutionality of the imposed sentence and the assessed fine and
court costs because he failed to object or complain about these issues in the trial
court. We agree.
      To preserve error for appellate review, a party must make a timely request,
objection, or motion to the trial court, state the specific grounds for the desired
ruling, and obtain a ruling. TEX. R. APP. P. 33.1(a)(1)(A). Therefore, to preserve a
complaint that an imposed sentence or assessed fine is disproportionate or excessive,
as Appellant now asserts, a defendant must first raise the issue in the trial court. See
Burt v. State,
396 S.W.3d 574, 577
 (Tex. Crim. App. 2013). Here, Appellant did not
assert a specific constitutional objection in the trial court at the time (1) his sentence
was imposed and (2) the fine was assessed. Appellant did file a motion for new trial
which alleged, in part, that “[t]he Defendant believes there was error in the
punishment phase of his trial, either by the undersigned attorney, the prosecution, or
the Court.” This, however, is too broad a statement to place the trial court on notice
of the complaints Appellant now raises on appeal. See Vasquez v. State,
483 S.W.3d 550, 554
 (Tex. Crim. App. 2016) (“[A] general or imprecise objection will not
preserve error for appeal unless ‘the legal basis for the objection is obvious to the
court and to opposing counsel.”’ (quoting Buchanan v. State,
207 S.W.3d 772, 775
(Tex. Crim. App. 2006))).
      Because Appellant did not object in the trial court on the grounds that he now
advances on appeal, he failed to preserve error for our review and has waived his
complaint on appeal. See Vidaurri v. State,
49 S.W.3d 880, 886
 (Tex. Crim. App.
2001); Rhoades v. State,
934 S.W.2d 113, 119
 (Tex. Crim. App. 1996) (the failure


                                            4
to raise Eighth Amendment issues in the trial court or in a motion for new trial will
not preserve error for appeal); Curry v. State,
910 S.W.2d 490, 497
 (Tex. Crim. App.
1995) (holding that Eighth Amendment issues are subject to the rules of error
preservation and are forfeited if not raised in the trial court); Alvarez v. State,
525 S.W.3d 890, 892
 (Tex. App.—Eastland 2017, pet. ref’d).
      B. Eighth Amendment Challenges
      Notwithstanding Appellant’s waiver of his complaint, we conclude that the
sentence, fine, and court costs imposed by the trial court are not violative of the
Eighth Amendment’s prohibition against excessive fines. When we review a trial
court’s sentencing determination, we note that trial courts are afforded “a great deal
of discretion” in sentencing decisions. Renfroe v. State,
529 S.W.3d 229, 233
 (Tex.
App.—Eastland 2017, pet. ref’d) (quoting Jackson v. State,
680 S.W.2d 809, 814
(Tex. Crim. App. 1984)). Therefore, we will not disturb a trial court’s decision as
to punishment absent a showing of an abuse of discretion and harm.
Id.
 (citing
Jackson,
680 S.W.2d at 814
).
             1. Appellant’s Sentence
      Punishment is generally not considered to be violative of the Eighth
Amendment if the imposed sentence falls within the statutory range of punishment
for the offense for which the defendant was convicted. State v. Simpson,
488 S.W.3d 318, 323
 (Tex. Crim. App. 2016); Sneed v. State,
406 S.W.3d 638, 643
 (Tex. App.—
Eastland 2013, no pet.). However, a narrow exception to this rule exists: when the
sentence imposed is grossly disproportionate to the defendant’s convicted offense,
it may violate the Eighth Amendment, even if it is within the offense’s statutory
range of punishment. Renfroe,
529 S.W.3d at 233
 (citing Solem v. Helm,
463 U.S. 277
, 290–92 (1983)); Sneed,
406 S.W.3d at 643
. Nevertheless, “[o]utside the
context of capital punishment, successful challenges to the proportionality of


                                          5
particular sentences [will be] exceedingly rare.”       Solem, 463 U.S. at 289–90
(alterations in original) (quoting Rummel v. Estelle,
445 U.S. 263, 272
 (1980)).
      To evaluate the proportionality of a sentence, the first step is to make a
threshold comparison between the gravity of the offense for which the defendant
was convicted, and the severity of the sentence imposed. Simpson,
488 S.W.3d at 322
; Renfroe,
529 S.W.3d at 234
; Alvarez,
525 S.W.3d at 893
; see Harmelin v.
Michigan,
501 U.S. 957, 1005
 (1991) (Kennedy, J., concurring). When we analyze
the gravity of the convicted offense, we review the harm caused or threatened to the
victim, the culpability of the offender, and the offender’s criminal history. Simpson,
488 S.W.3d at 323
; Renfroe,
529 S.W.3d at 234
. However, if we do not find a gross
disproportionality, our analysis ends there.      See Harmelin,
501 U.S. at 1005
;
Renfroe,
529 S.W.3d at 234
 (citing Bradfield v. State,
42 S.W.3d 350
, 353–54 (Tex.
App.—Eastland 2001, pet. ref’d).
      The punishment range for a first-degree felony offense, such as the lesser
offense for which Appellant pleaded guilty, is either imprisonment for life or for any
term of not more than ninety-nine years or less than five years. PENAL § 12.32(a)
(West 2019). In addition to the term of imprisonment imposed, a fine not to exceed
$10,000 may be assessed against the convicted defendant. Id. § 12.32(b). In this
case, the trial court assessed Appellant’s punishment at life imprisonment and a fine
of $10,000; the trial court also assessed mandatory court costs of $290 and
reimbursement fees of $120. Appellant argues that the trial court violated his right
to be free from excessive fines under the Eighth Amendment when it sentenced him
to life imprisonment and assessed, despite Appellant’s indigency, a $10,000 fine,
court costs of $290, and reimbursement fees of $120.
      At the outset, we note that the legislature is vested with the authority to define
criminal offenses and to prescribe the applicable fines and punishment for each


                                           6
offense. See State ex rel. Smith v. Blackwell,
500 S.W.2d 97, 104
 (Tex. Crim. App.
1973). Here, Appellant’s sentence falls within the punishment range prescribed by
the legislature for the offense for which he was convicted, i.e., aggravated sexual
assault of a child. However, we cannot ignore the circumstances and gravity of this
offense and the substantial harm and trauma endured by S.A. that resulted from
Appellant’s egregious conduct. Appellant admitted to sexually abusing S.A., his
minor daughter, on multiple occasions. Further, the effect of Appellant’s conduct
and the harm that it caused to S.A. is irreparable.
      Therefore, given the serious harm caused to S.A., Appellant’s culpability for
this offense, and Appellant’s criminal history, we cannot say that the trial court either
abused its discretion or violated Appellant’s Eighth Amendment rights, when it
assessed Appellant’s punishment at life imprisonment. Contrary to Appellant’s
assertion, neither the imposition of a maximum sentence nor the assessment of a
maximum fine, both of which are authorized by statute, necessarily implicate or
result in an Eighth Amendment violation. See Guillory v. State,
652 S.W.3d 923
,
930–31 (Tex. App.—Eastland 2022, no pet.) (the maximum sentence imposed by
the trial court of twenty years’ imprisonment for the offense of aggravated assault
was not excessive or violative of the Eighth Amendment); Hernandez v. State,
No. 11-17-00102-CR,
2019 WL 1496160
, at *5–6 (Tex. App.—Eastland Apr. 4,
2019, pet. ref’d) (mem. op., not designated for publication) (a seventy-five year
sentence for the offense of continuous sexual abuse of a child was not excessive).
             2. Assessment of Fine and Court Costs
      Turning now to Appellant’s “excessive fines” argument, the fine amount
assessed by the trial court is clearly within the statutory range prescribed by the
legislature. See PENAL § 12.32(b). Punishment (which includes the assessment of a
fine) that falls within the range authorized by statute is not excessive. See Simpson,


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488 S.W.3d at 323
; Sneed,
406 S.W.3d at 643
. Nevertheless, Appellant argues that,
based on his circumstances, the trial court’s assessment of the maximum fine of
$10,000 constitutes an “excessive fine” in violation of the Eighth Amendment. We
disagree.   As we have said, Appellant’s conduct was egregious and caused
significant harm and trauma to S.A. The record also shows that Appellant expressed
little, if any, remorse for his conduct. Instead, and despite his admission to the
convicted offense, Appellant elected to deny and minimize his actions. Considering
the record before us, we cannot say that the $10,000 fine imposed by the trial court
is either excessive or violative of the Eighth Amendment. See Neeley v. State,
No. 02-14-00241-CR,
2015 WL 1967306
, at *5 (Tex. App.—Fort Worth Apr. 30,
2015, no pet.) (mem. op., not designated for publication) (rejecting a similar
argument that the assessment of a $10,000 fine was excessive).
      Moreover, Appellant has not cited to or directed us to any case law or other
authority that indicates a trial court must consider a defendant’s indigence
when assessing a fine. Contra Williams v. Illinois,
399 U.S. 235, 243
 (1970)
(“nothing . . . precludes a judge from imposing on an indigent, as on any defendant,
the maximum penalty prescribed by law”). We further note that the order to
withdraw funds from Appellant’s Inmate Trust Account limits the funds to be
withdrawn to a one-time initial payment of no more than 50% of the account deposit
and monthly withdrawals of 10% of each month’s deposit thereafter. See Wright v.
State,
930 S.W.2d 131
, 133–34 (Tex. App.—Dallas 1996, no pet.) (“The fact that
appellant may be indigent for purposes of retaining trial and appellate counsel,
however, does not compel the conclusion that he is indigent for purposes of paying
his fine in twenty dollar monthly installments.”). Because the trial court was not
required to make a special accommodation or consideration of Appellant’s indigence




                                         8
when it assessed the $10,000 fine, the order to withdraw funds does not impose
excessive terms on Appellant’s obligation to pay the fine.
      Finally, Appellant argues that, because he is indigent, the trial court abused
its discretion when it assessed court costs and reimbursement fees against Appellant.
We disagree. While it is improper to assess court-appointed attorney’s fees against
an indigent defendant, Cates v. State,
402 S.W.3d 250
, 251–52 (Tex. Crim. App.
2013), the Code of Criminal Procedure requires that a convicted defendant must pay
legislatively mandated, court-ordered costs. Osuna v. State, No. 03-18-00239-CR,
2018 WL 3233733
, at *10 (Tex. App.—Austin July 3, 2018, no pet.) (mem. op., not
designated for publication). Court costs are “pre-determined, legislatively mandated
obligations resulting from a conviction.” Id.; see TEX. CODE CRIM. PROC. ANN.
arts. 42.15 (West Supp. 2022), 42.16 (West 2018).            Further, and relevant to
Appellant's claim, “[a] defendant’s ability to pay is not relevant with respect to
legislatively mandated court costs.” Rivers v. State, No. 13-16-00407-CR,
2017 WL 2492610
, at *1 (Tex. App.—Corpus Christi–Edinburg June 8, 2017, no pet.)
(mem. op., not designated for publication) (alteration in original) (quoting Allen v.
State,
426 S.W.3d 253, 258
 (Tex. App.—Texarkana 2013, no pet.); Martin v. State,
405 S.W.3d 944, 947
 (Tex. App.—Texarkana 2013, no pet.)). Therefore, indigent
criminal defendants, such as Appellant, are not excused from paying mandatory
court costs. Uballe v. State, No. 11-18-00131-CR,
2020 WL 3287142
, at *2 (Tex.
App.—Eastland June 18, 2020, no pet.) (mem. op., not designated for publication);
Anaya v. State, No. 11-17-00076-CR,
2019 WL 1428612
, at *5 (Tex. App.—
Eastland Mar. 29, 2019, no pet.) (mem. op., not designated for publication).
      For the reasons stated above, we overrule Appellant’s sole issue on appeal.




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      C. Modification of Judgment
      Although not raised by either party, we note that the judgment contains a
nonreversible error. We have the authority to modify and reform the trial court’s
judgment to make the judgment speak the truth when we have the necessary
information to do so. See TEX. R. APP. P. 43.2(b); Bigley v. State,
865 S.W.2d 26
,
27–28 (Tex. Crim. App. 1993); French v. State,
830 S.W.2d 607, 609
 (Tex. Crim.
App. 1992).
      Here, the trial court’s judgment erroneously recites that the “Statute for [the]
Offense” for which Appellant was convicted is Section 21.02 of the Penal Code.
However, Appellant pleaded guilty and was convicted of the lesser included offense
of aggravated sexual assault of a child. See PENAL §§ 22.021(a)(1)(B)(i), (2)(B).
Therefore, we modify the trial court’s judgment to recite that the “Statute for [the]
Offense” for which Appellant was convicted is “22.021(a)(1)(B)(i), (2)(B), Penal
Code.”
                                   III. This Court’s Ruling
      As modified, we affirm the judgment of the trial court. See TEX. R. APP. P.
43.2(b).




                                                 W. STACY TROTTER
                                                 JUSTICE


December 15, 2022
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Bailey, C.J.,
Trotter, J., and Williams, J.



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