                        NUMBER 13-13-00627-CR

                       COURT OF APPEALS

              THIRTEENTH DISTRICT OF TEXAS

                CORPUS CHRISTI – EDINBURG

NOE ADRIAN SALINAS,                                               Appellant,

                                       v.

THE STATE OF TEXAS,                                                 Appellee.


               On appeal from the 214th District Court
                     of Nueces County, Texas.


                     MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Rodriguez and Perkes
         Memorandum Opinion by Chief Justice Valdez
      Appellant, Noe Salinas, appeals his conviction by a jury of the offense of

capital murder in which the State did not seek the death penalty. See TEX. PENAL

CODE ANN. § 19.03(a)(7) (West, Westlaw through 2015 R.S.). The trial court

assessed appellant’s punishment, in accordance with article 37.071 section 1 of

the Texas Code of Criminal Procedure, at life imprisonment without parole. See
TEX. CODE CRIM. PROC. ANN. art. 37.071 § 1 (West, Westlaw through 2015 R.S.).

By one issue, appellant contends that his life sentence violates the Eighth and

Fourteenth Amendments of the United States Constitution. We affirm.1

                           I.      CRUEL AND UNUSUAL PUNISHMENT

        The Eighth Amendment to the United States Constitution prohibits the

government from inflicting cruel and unusual punishment against a criminal

defendant. See U.S. CONST. amend. VIII. The Texas legislature has determined

that when a criminal defendant is convicted of capital murder, the defendant is

subject to either the penalty of death or life imprisonment without the possibility of

parole. See TEX. PENAL CODE ANN. § 12.31(a) (West, Westlaw through 2015 R.S.).

If the State chooses not to seek the death penalty, there is no penalty phase of the

trial during which the defendant may present mitigating evidence; instead, by

statute, the trial judge is required to automatically impose a life sentence, which is

what the trial court did in this case after the jury found appellant guilty of capital

murder. See TEX. CODE CRIM. PROC. ANN. art. 37.071 § 1.

        By his sole issue, appellant argues that this mandatory sentencing scheme

violates the cruel-and-unusual-punishment prohibition of the Eighth Amendment

because it prevented him from raising the issue of “sudden passion” to mitigate his

life sentence—a defense which appellant contends the evidence at his trial would

have supported had he not been statutorily deprived of a punishment trial.2 The


        1  As this is a memorandum opinion, and the parties are familiar with the facts, we will not
recite them except as necessary to explain the Court's decision and the basic reasons for it. See
TEX. R. APP. P. 47.4.
         2 “Sudden passion” is a mitigating circumstance to the offense of murder that, if proven by

a defendant, reduces the punishment range for the offense from a first degree felony to a second
degree felony. See TEX. PENAL CODE ANN. § 19.02(d) (West, Westlaw through 2015 R.S.). By
statute, the mitigating circumstance of sudden passion is only available to a murder defendant—

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State contends, among other things, that appellant waived this issue because he

did not raise a proper objection in the trial court. We agree with the State.

       In general, a challenge to the constitutionality of a statute cannot be made

for the first time on appeal. See Karenev v. State, 281 S.W.3d 428, 434 (Tex.

Crim. App. 2009) (holding that a facial challenge to constitutionality of statute could

not be made for first time on appeal); Sony v. State, 307 S.W.3d 348, 352 (Tex.

App.—San Antonio 2009, no pet.) (citing Curry v. State, 910 S.W.2d 490, 496 (Tex.

Crim. App. 1995)) (holding that an “as applied” challenge to constitutionality of

statute could not be made for first time on appeal); see also Kaizer v. State, 13-

11-00566-CR, 2013 WL 3009742, at *6 (Tex. App.—Corpus Christi June 13, 2013,

pet. ref’d) (mem. op., not designated for publication); Pena v. State, No. 13-14-

00120-CR, 2014 WL 4161562, at *5 (Tex. App.—Corpus Christi Aug. 21, 2014, no

pet.) (mem. op., not designated for publication). Here, appellant did not object to

the constitutionality of his automatic life sentence at trial; therefore he has waived

the issue for our review. See TEX. R. APP. P. 33.1(a).

       But even were we to reach the merits of appellant's constitutional challenge,

we note that the United States Supreme Court has held that a state sentencing

scheme that calls for an automatic sentence of life imprisonment without parole

does not constitute cruel and unusual punishment within the meaning of the Eighth

Amendment. See Harmelin v. Michigan, 501 U.S. 957, 994 (1991); see also Buhl

v. State, 960 S.W.2d 927, 935–36 (Tex. App.—Waco 1998, pet. ref'd) (holding that



not a capital murder defendant, such as appellant, whose punishment is fixed at automatic life
imprisonment without parole. TEX. CODE CRIM. PROC. ANN. art. 37.071 § 1 (West, Westlaw through
2015 R.S.); TEX. PENAL CODE ANN. § 12.31(a)(2) (West, Westlaw through 2015 R.S.).

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automatic life sentence under article 37.071 did not violate defendant’s Eighth

Amendment or due process rights); Lopez v. State, No. 13-12-00306-CR, 2013

WL 6924169, at *11 (Tex. App.—Corpus Christi Dec. 30, 2013, pet. ref’d) (mem.

op., not designated for publication). We therefore overrule appellant’s sole issue.

                                  II.    CONCLUSION

       We affirm the judgment of the trial court.

                                                    /s/ Rogelio Valdez
                                                    ROGELIO VALDEZ
                                                    Chief Justice

Do not publish.
TEX. R. APP. P. 47.2(b).

Delivered and filed the
22nd day of October, 2015.




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