Full Opinion (html_with_citations)

Opinion filed December 14, 2023




                                      In The


        Eleventh Court of Appeals
                                   __________

                              No. 11-22-00128-CR
                                  __________

                     DEONTA STARLING, Appellant
                                         V.
                    THE STATE OF TEXAS, Appellee


                     On Appeal from the 70th District Court
                              Ector County, Texas
                      Trial Court Cause No. A-19-1719-CR


                     MEMORANDUM OPINION
      Appellant, Deonta Starling, was indicted for the first-degree felony offense of
Aggravated Sexual Assault of a Child. See TEXAS PENAL CODE ANN. § 22.021 (West
2019). Appellant pleaded guilty to the offense; the trial court deferred a finding of
guilt and placed him on community supervision for a period of ten years. The State
subsequently filed a motion to adjudicate Appellant’s guilt, alleging multiple
violations of his community supervision. At the hearing on the State’s motion,
Appellant testified and admitted on both direct and cross-examination that he had
committed three of the violations that the State had alleged. The trial court found
those three allegations to be “true,” adjudicated Appellant guilty of the underlying
offense—Aggravated Sexual Assault of a Child, revoked his community
supervision, and assessed his punishment at life imprisonment in the Institutional
Division of the Texas Department of Criminal Justice (TDCJ). Appellant complains
that the life sentence violated the Eighth Amendment in that it was grossly
disproportionate to the crime for which he pleaded guilty and the violations of the
terms and conditions of his community supervision. We affirm.
                                Factual Background
      The offense of Aggravated Sexual Assault of a Child, to which Appellant
pleaded guilty, was alleged to have been committed against a twelve-year-old
female. Pursuant to the terms of the parties’ negotiated plea agreement, the trial
court deferred a finding of guilt and placed Appellant on community supervision for
a period of ten years for the offense. However, Appellant did not comply with
certain terms and conditions of his community supervision for even one of those ten
years; the State filed its motion to adjudicate within the first year based on acts he
was alleged to have committed after being placed on community supervision.
      At the hearing on the State’s motion, the State called Edward Guerrero, a
probation officer with the Ector County Adult Probation Office who supervises
offenders placed on community supervision for sexual offenses. Guerrero was
assigned to supervise Appellant during his community supervision.           Guerrero
testified that he went over all of the terms and conditions of Appellant’s
community supervision with him. Further, Appellant signed the adjudication order
acknowledging that he understood each term and condition of his community
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supervision. Guerrero testified that Appellant “understood exactly what he was
supposed to do on probation.”       Guerrero testified that, while on community
supervision, Appellant resided at the home of his mother, which was located within
1,000 feet of a school in violation of his community supervision. Appellant’s
mother, Lasandra Starling, testified that, “[w]hen he first got out, they told us that
he couldn’t stay there [at her home.]” But after being unable to maintain housing in
Odessa, Appellant made the choice to move back to Midland, to reside with his
mother, knowing that it was within 1,000 feet of a school zone.
      Appellant also testified at the hearing. Appellant admitted to the offense—
that he committed aggravated sexual assault of a child against his twelve-year-old
family member. Appellant further confirmed that he had committed and been
convicted of an offense while on community supervision. Appellant testified that
he was convicted of Failure to Comply with Sex Offender Registration requirements
and sentenced to two years in the Institutional Division of TDCJ for that offense,
and he served five months of the sentence before being placed on parole. Appellant
also admitted on both direct and cross-examination that he had committed three of
the violations of the terms and conditions of community supervision that the State
had alleged in its motion.
                                      Analysis
      In his sole issue, Appellant complains that the life sentence violated the Eighth
Amendment in that it was grossly disproportionate to the crime for which he pleaded
guilty and violations of the terms and conditions of his community supervision.
      A. Complaint Regarding the Alleged Violation of the Eighth Amendment was
      not Preserved
      The State responds that we should overrule Appellant’s sole issue on appeal,
because the disproportionate-sentence claim was not preserved for appellate review.
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See TEX. R. APP. P. 33.1(a)(1); Garza v. State,
435 S.W.3d 258
, 260–61 (Tex. Crim.
App. 2014). In this regard, Appellant did not object or otherwise bring to the trial
court’s attention that the sentence was disproportionate as he now asserts. Appellant
also did not file a motion for new trial to preserve his claim of error.
       Constitutional rights, including the right to be free from cruel and unusual
punishment, may be waived. Rhoades v. State,
934 S.W.2d 113, 120
 (Tex. Crim.
App. 1996); Rodriguez v. State,
71 S.W.3d 778, 779
 (Tex. App.—Texarkana 2002,
no pet.); Renfroe v. State,
529 S.W.3d 229, 233
 (Tex. App.—Eastland 2017, pet
ref’d). Appellant never objected in the trial court on Eighth Amendment grounds.
He also did not object in the trial court on constitutional or other grounds to the
alleged disparity, cruelty, unusualness, or excessiveness of the sentence. In the
absence of a timely objection or request, a defendant’s complaint is not preserved
for appellate review. See Vidaurri v. State,
49 S.W.3d 880, 886
 (Tex. Crim. App.
2001). Because Appellant did not timely object or raise the issue in the trial court,
Appellant has failed to preserve his complaint for our review. See id.; see also
Rhoades,
934 S.W.2d at 119
 (failure to raise Eighth Amendment issue in trial court
or in motion for new trial fails to preserve error for appeal); Curry v. State,
910 S.W.2d 490, 497
 (Tex. Crim. App. 1995) (Eighth Amendment issues are
forfeited if not raised in the trial court); Solis v. State,
945 S.W.2d 300, 301
 (Tex.
App.—Houston [1st Dist.] 1997, pet. ref’d) (holding that a claim of a grossly
disproportionate sentence in violation of the Eighth Amendment was forfeited by
failure to object).
       B. The Sentence is not Grossly Disproportionate to the Offense or the
       Conduct
       Even if Appellant had preserved his Eighth Amendment claim, we conclude
that his sentence is not grossly disproportionate to the offense. When we review a
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trial court’s sentencing determination, we note that trial courts are afforded “a great
deal of discretion” in sentencing decisions. Renfroe,
529 S.W.3d at 233
 (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
).
      To run afoul of the Eighth Amendment, a sentence must be grossly
disproportionate to the crime. State v. Simpson,
488 S.W.3d 318, 322
 (Tex. Crim.
App. 2016) (quoting Ewing v. California,
538 U.S. 11, 23
 (2003) (plurality
opinion)). A punishment for a term of years will be grossly disproportionate “only
in the exceedingly rare or extreme case.”
Id.
 at 322–23 (citing Lockyer v. Andrade,
538 U.S. 63, 73
 (2003)). 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. Simpson,
488 S.W.3d at 323
; 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 particular sentences [will
be] exceedingly rare.” Solem, 463 U.S. at 289–90 (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 v. State,
525 S.W.3d 890, 893
 (Tex.
                                              5
App.—Eastland 2017, pet. ref’d); 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)). Only if grossly disproportionate to the offense, must we then compare
Appellant’s sentence with the sentences received for similar crimes in this
jurisdiction or in other jurisdictions. Bradfield, 42 S.W.3d at 353–54.
      The punishment range for a first-degree felony offense 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). 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 $500.
      The legislature is vested with the authority to define criminal offenses and to
prescribe the applicable fines and punishment for each 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 likely endured by a twelve-year-old child resulting from
Appellant’s conduct. Appellant admitted to sexually abusing the child, the effect of
which conduct and the harm being foreseeably egregious.

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      Therefore, given the abuse of a child, Appellant’s culpability for this offense,
the failure-to-register offense, and Appellant’s subsequent inability to adhere to the
terms and conditions of community supervision even a single year, 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, the imposition of a maximum sentence, which is
authorized by statute, does not necessarily implicate or result in an Eighth
Amendment violation. See Guillory v. State,
652 S.W.3d 923
, 930–31 (Tex. App.—
Eastland 2022, pet. filed) (the maximum sentence imposed by the trial court of
twenty years’ imprisonment upon revocation of the defendant’s deferred
adjudication community supervision for 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); Amparan v. State, No. 11-21-
00162-CR,
2022 WL 17684377
, at *3 (Tex. App.—Eastland Dec. 15, 2022, no pet.)
(mem. op., not designated for publication) (life imprisonment for sexual assault of a
child is not excessive under the Eighth Amendment). While Appellant provided
none—because Appellant’s sentence is not grossly disproportionate to the offense
of aggravated assault—we need not compare sentences received for similar crimes
in Ector County or in other jurisdictions to his sentence. See Bradfield, 42 S.W.3d
at 353–54; Guillory, 652 S.W.3d at 931. Accordingly, we overrule Appellant’s sole
issue on appeal.




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                                   This Court’s Ruling
      We affirm the judgment of the trial court.




                                               W. BRUCE WILLIAMS
                                               JUSTICE


December 14, 2023
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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