                                      In The

                                Court of Appeals

                    Ninth District of Texas at Beaumont

                               __________________

                               NO. 09-18-00318-CR
                               __________________

            NELSON MAURICIO SEGOVIA-AMAYA, Appellant

                                         V.

                       THE STATE OF TEXAS, Appellee

__________________________________________________________________

                On Appeal from the 9th District Court
                     Montgomery County, Texas
                   Trial Cause No. 16-12-14898-CR
__________________________________________________________________

                          MEMORANDUM OPINION

      A jury convicted appellant Nelson Mauricio Segovia-Amaya of murder, and

the trial judge assessed punishment at confinement for life. See Tex. Penal Code

Ann. § 19.02. In three issues, Segovia-Amaya argues that (1) his sentence constitutes

cruel and unusual punishment, and the trial court erred by denying his motion for

new trial because (2) the jury was improperly instructed, and (3) the challenged

instruction, which was based upon article 37.07, § 2(a) of the Texas Code of
                                         1
Criminal Procedure, unconstitutionally shifted the burden of proof to Segovia-

Amaya. We affirm the trial court’s judgment.

                                    ISSUE ONE

      In his first issue, Segovia-Amaya argues that his sentence of life imprisonment

constituted cruel and unusual punishment and is grossly disproportionate to the

offense in violation of the U.S. and Texas constitutions. See U.S. Const. amend. VIII;

Tex. Const. art. I, § 13. Generally, a sentence that is within the range of punishment

established by the Legislature is not excessive, cruel, or unusual, and will not be

disturbed on appeal. State v. Simpson, 488 S.W.3d 318, 323 (Tex. Crim. App. 2016);

Jackson v. State, 680 S.W.2d 809, 814 (Tex. Crim. App. 1984). Rarely will an

appellate court consider a punishment range for the offense excessive,

unconstitutionally cruel, or unusual under either Texas law or the United States

Constitution. See Kirk v. State, 949 S.W.2d 769, 772 (Tex. App.—Dallas 1997, pet.

ref’d); see also Jackson v. State, 989 S.W.2d 842, 846 (Tex. App.—Texarkana 1999,

no pet.). An exception to this general rule is recognized when the sentence is grossly

disproportionate to the offense. Solem v. Helm, 463 U.S. 277, 289-90 (1983). With

the exception of cases involving capital punishment, successful challenges to the

proportionality of particular sentences are exceedingly rare. Id.



                                          2
      In determining whether a sentence is grossly disproportionate to a particular

defendant’s crime, we consider (1) the severity of the sentence in light of the harm

caused to the victim; (2) the defendant’s culpability; and (3) the defendant’s prior

adjudicated and unadjudicated offenses. Simpson, 488 S.W.3d at 323. In the rare

case in which this threshold comparison leads to an inference of gross

disproportionality, we then compare the defendant’s sentence with the sentences of

other offenders in Texas and with the sentences imposed for the same crime in other

jurisdictions. Id. “If this comparative analysis validates an initial judgment that the

sentence is grossly disproportionate, the sentence is cruel and unusual.” Id.

      Murder is a first-degree felony offense, which carries a punishment range of

confinement for life or for any term of not more than ninety-nine years or less than

five years. Tex. Penal Code Ann. §§ 12.32(a), 19.02(c). In addition to imprisonment,

a first-degree felony may also be punished by a fine not to exceed $10,000. Id. §

12.32(b). As discussed above, the trial judge assessed Segovia-Amaya’s punishment

at confinement for life. The trial judge did not impose a fine. Segovia-Amaya

testified that he shot the victim, but he explained that the victim had a gun and had

previously threatened him, and he believed the victim intended to shoot him.

Segovia-Amaya testified that he fled the scene after the shooting. A forensic

pathologist testified that the victim was shot seven times, and the cause of the

                                          3
victim’s death was multiple gunshot wounds. Evidence was also introduced in the

punishment phase that Segovia-Amaya had previously been convicted of driving

while intoxicated and two charges of failure to identify himself to a police officer.

       Having reviewed the entire record, we cannot conclude that this is one of those

rare cases that leads to the inference that the sentence imposed was cruel and unusual

or grossly disproportionate to the offense. See Solem, 463 U.S. at 289-90; Simpson,

488 S.W.3d at 323; see also Kirk, 949 S.W.2d at 772. Accordingly, we overrule issue

one.

                                      ISSUE TWO

       In issue two, Segovia-Amaya contends the trial court erred by denying his

motion for new trial because the jury was improperly charged that its sole duty was

to “determine the guilt or innocence of the Defendant under the indictment[.]”

Segovia-Amaya notes that article 37.07, § 2(a) of the Texas Code of Criminal

Procedure requires the trial court to “submit to the jury the issue of guilt or innocence

of the defendant[,]” and he notes that although both the challenged instruction and

article 37.07, § 2(a) use the phrase “guilt or innocence[,]” the trial court had “no

apparent reason” to have tracked the statutory language from article 37.07, § 2(a).

In addition, Segovia-Amaya asserts that “[t]he argument that ‘tracking’ article 37.07,

§ 2(a) cures the error is disingenuous[,] and it disregards . . . article 37.07(b), § 1(b),

                                            4
which specifically instructs that” if a defendant pleads not guilty, jurors must find

that the defendant is either guilty or not guilty.

      When reviewing alleged charge error, we determine whether error existed in

the charge and, if so, whether sufficient harm resulted from the error to compel

reversal. Ngo v. State, 175 S.W.3d 738, 744 (Tex. Crim. App. 2005). If no error

occurred, our analysis ends. See Kirsch v. State, 357 S.W.3d 645, 649 (Tex. Crim.

App. 2012). If, as here, the defendant does not object to the alleged charge error at

trial, we may reverse the judgment only if the error is so egregious that the defendant

did not receive a fair and impartial trial. Almanza v. State, 686 S.W.2d 157, 171

(Tex. Crim. App. 1984) (op. on reh’g); see also Herron v. State, 86 S.W.3d 621, 632

(Tex. Crim. App. 2002). Even if alleged jury-charge error was raised in a motion for

new trial, unpreserved jury-charge error does not require a new trial unless the error

caused egregious harm. Ngo, 175 S.W.3d at 743-44; Almanza, 686 S.W.2d at 171.

In assessing the degree of harm, we must consider the entire jury charge, the state of

the evidence, the argument of counsel, and any other relevant information revealed

by the record. Almanza, 686 S.W.2d at 171. We must examine the charge in its

entirety rather than a series of isolated statements. Holley v. State, 766 S.W.2d 254,

256 (Tex. Crim. App. 1989); Iniguez v. State, 835 S.W.2d 167, 170 (Tex. App.—

Houston [1st Dist.] 1992, pet. ref’d). “Egregious harm is a difficult standard to prove

                                            5
and such a determination must be done on a case-by-case basis.” Hutch v. State, 922

S.W.2d 166, 171 (Tex. Crim. App. 1996).

      Some of our sister courts have concluded that a jury instruction like the

instruction Segovia-Amaya challenges is not erroneous. See Avila v. State, 15

S.W.3d 568, 576-77 (Tex. App.—Houston [14th Dist.] 2000, no pet.); Flores v.

State, 920 S.W.2d 347, 357 (Tex. App.—San Antonio 1996), pet. dism’d,

improvidently granted, 940 S.W.2d 660 (Tex. Crim. App. 1996); Barnes v. State,

855 S.W.2d 173, 175 (Tex. App.—Houston [14th Dist.] 1993, pet. ref’d). The

instruction is designed to draw the jury’s attention to the first phase of a bifurcated

criminal trial (the guilt-innocence phase) and to direct the jury away from

considering other issues, including punishment. See Barnes, 855 S.W.2d at 175. In

this case, the jury charge instructed the jury that (1) “[a]ll persons are presumed to

be innocent and no person may be convicted of an offense unless each element of

the offense is proved beyond a reasonable doubt[;]” (2) “[t]he law does not require

a Defendant to prove his innocence or produce any evidence at all[;]” and (3) “[t]he

prosecution has the burden of proving the Defendant guilty and it must do so by

proving each and every element of the offense charged beyond a reasonable

doubt[,]” and “[i]f it fails to do so, you must acquit the Defendant.”



                                          6
      Segovia-Amaya acknowledges the holdings of our sister courts regarding the

complained-of instruction, and he also argues that the pattern jury charges have

“changed since 1975 and . . . the current version has replaced ‘guilt or innocence’

with ‘Your sole duty at this point is to determine whether the defendant has been

proved guilty.” See State Bar of Texas, Texas Criminal Pattern Jury Charges—

General, Evidentiary & Ancillary Instructions, § 2.1 (2015). Segovia-Amaya did not

cite any authorities that require this Court to find that the trial court erred by using

language that differed from the language contained in the pattern jury charge, nor

are we are aware of any. See Tex. R. App. P. 38.1(i). The pattern jury charges are

“suggestions and guides” that “have no official status.” State Bar of Texas, Texas

Criminal Pattern Jury Charges—General, Evidentiary & Ancillary Instructions,

Introduction. “Appellate courts are unlikely to regard trial judges’ refusal to use the

Committee’s jury instructions as reversible error.” Id. We conclude that the trial

court’s instruction was not erroneous. Although we need not determine whether any

harm resulted because we have found no error, we further conclude that even if the

trial court’s instruction were erroneous, Segovia-Amaya has not established

egregious harm. Having examined the entire jury charge, the state of the evidence,

the argument of counsel, and any other relevant information revealed by the record,

we cannot conclude that the error was so egregious as to deny Segovia-Amaya a fair

                                           7
and impartial trial. See Almanza, 686 S.W.2d at 171. Accordingly, we overrule issue

two.

                                   ISSUE THREE

       In issue three, Segovia-Amaya argues that the trial judge erred by denying his

motion for new trial because the complained-of instruction, which was based upon

article 37.07, § 2(a), unconstitutionally shifted the burden of proof to him.

Specifically, Segovia-Amaya asserts that article 37.07, § 2(a) of the Texas Code of

Criminal Procedure is unconstitutional as applied to him, and he maintains that the

use of the statute in his case violated due process by unconstitutionally shifting the

burden of proof to him. Segovia-Amaya did not make this argument during the trial,

but he did make the argument in his motion for new trial.

       An as-applied constitutional challenge must be raised in the trial court to

preserve error. Reynolds v. State, 423 S.W.3d 377, 383 (Tex. Crim. App. 2014);

Flores v. State, 245 S.W.3d 432, 437 n. 14 (Tex. Crim. App. 2008). Segovia-Amaya

failed to raise an objection at trial regarding his contention that the statute operated

unconstitutionally as applied to him. When reviewing a challenge to the

constitutionality of a statute, we presume that the statute is valid and that the

Legislature acted reasonably in enacting it. Faust v. State, 491 S.W.3d 733, 743-44

(Tex. Crim. App. 2015). The party challenging the constitutionality of a statute bears

                                           8
the burden of establishing that the statute in question is unconstitutional as applied

to him. See Schlittler v. State, 488 S.W.3d 306, 313 (Tex. Crim. App. 2016). To

resolve an as-applied challenge requires a recourse to evidence, and the party

challenging the statute must produce evidence that specifically demonstrates that the

complained-of statute is unconstitutional as applied to him. See Estes v. State, 546

S.W.3d 691, 698 (Tex. Crim. App. 2018).

      As discussed in our analysis of issue two, we concluded that the trial court’s

inclusion of language from article 37.07, § 2(a) of the Texas Code of Criminal

Procedure was neither erroneous nor egregiously harmful. Segovia-Amaya failed to

lodge an “as-applied” challenge or objection at trial, and he failed to produce

evidence with his motion for new trial that specifically demonstrated that the statute

operated unconstitutionally as to him or that he was denied due process. See id.;

Faust, 492 S.W.3d at 743-44. As previously discussed, the trial court clearly and

explicitly instructed the jury regarding the State’s burden of proving the charge

beyond a reasonable doubt and the presumption of Segovia-Amaya’s innocence.

Nothing in the record before us suggests a reasonable likelihood that the jury was

confused by the complained-of instruction, and Segovia-Amaya does not point us to

any such evidence. For the same reasons explained above, we reject Segovia-

Amaya’s argument that the inclusion of the complained-of instruction denied him

                                          9
due process. We conclude that Segovia-Amaya did not meet his burden of

specifically demonstrating that article 37.07, section 2(a) of the Texas Code of

Criminal Procedure is unconstitutional as applied to him. See Estes, 546 S.W.3d at

698. Accordingly, we overrule issue three. Having overruled each of Segovia-

Amaya’s issues, we affirm the trial court’s judgment.

      AFFIRMED.



                                                   _________________________
                                                      STEVE McKEITHEN
                                                          Chief Justice



Submitted on December 2, 2019
Opinion Delivered April 8, 2020
Do Not Publish

Before McKeithen, C.J., Kreger and Johnson, JJ.




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