                           NUMBER 13-16-00500-CR

                           COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                    CORPUS CHRISTI – EDINBURG

EUTIMIO SANCHEZ JR.,                                                      Appellant,

                                          v.

THE STATE OF TEXAS,                                                        Appellee.


                   On appeal from the 36th District Court
                      of San Patricio County, Texas.


                       MEMORANDUM OPINION
  Before Chief Justice Valdez and Justices Benavides and Longoria
             Memorandum Opinion by Justice Longoria

      Appellant Eutimio Sanchez was convicted of indecency with a child, a second-

degree felony. See TEX. PENAL CODE § 21.11 (West, Westlaw through 2017 1st C.S.).

Sanchez argues on appeal that: (1) the twenty-year sentence he received was cruel and

unusual and violated the U.S. Constitution; (2) he should have received credit towards

his sentence for the six years he served on community supervision; (3) Article 42.12 of
the Texas Code of Criminal Procedure violates the Equal Protection Clause of the

Fourteenth Amendment; (4) he received ineffective assistance of counsel at his

adjudication hearing; and (5) the trial court erred by not holding a hearing on his motion

for new trial. We affirm.

                                     I. BACKGROUND

       On May 14, 2010, Sanchez pled guilty to the offense of indecency with a child.

See id. The trial court deferred finding Sanchez guilty and placed him on probation for

ten years. On March 12, 2013, the State filed a motion to adjudicate guilt. At the hearing,

the State alleged that Sanchez violated the terms of his community supervision by

committing a new offense of driving while intoxicated with a child passenger, failing to

report the arrest, failing to complete sex offender group therapy, and failing to pay

financial arrearages. Sanchez pled true to all the terms except for the new offense of

driving while intoxicated with a child passenger; the trial court allowed Sanchez to remain

on community supervision but sanctioned him with a thirty-day jail term.

       On August 2, 2016, the State moved again to adjudicate guilt, alleging five

violations of his community supervision, including a positive test for cocaine and financial

arrearages. Sanchez pled true to the allegations and asked to remain on community

supervision with the condition of attending a substance abuse program; the trial court

proceeded to adjudicate guilt. The trial court found Sanchez guilty of indecency with a

child and sentenced Sanchez to twenty years in the Institutional Division of the Texas

Department of Criminal Justice. This appeal ensued.

                            II. CRUEL AND UNUSUAL PUNISHMENT




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       In his first issue, Sanchez argues that the imposition of a twenty-year sentence

constitutes cruel and unusual punishment in violation of the U.S. Constitution because

the sentence is grossly disproportionate to the offense committed. See U.S. CONST.

amend. VIII.

A. Standard of Review and Applicable Law

       A sentence which falls within the limits prescribed by a valid statute is usually not

excessive, cruel, or unusual. See Trevino v. State, 174 S.W.3d 925, 928 (Tex. App.—

Corpus Christi 2005, pet. ref’d). However, the Eighth Amendment of the United States

Constitution also requires that a criminal sentence be proportionate to the crime which

was committed to avoid being cruel and unusual. See U.S. CONST. amend. VIII.; Noland

v. State, 264 S.W.3d 144, 151 (Tex. App.—Houston [1st Dist.] 2007, pet. ref'd). In

analyzing a proportionality challenge, the Courts consider: (1) the gravity of the offense

and the harshness of the penalty; (2) sentences imposed on other criminals in the same

jurisdiction; and (3) sentences imposed for the commission of the same crime in other

jurisdictions. See State v. Stewart, 282 S.W.3d 729, 736 (Tex. App.—Austin 2009, no

pet.). “However, in order to preserve for appellate review a complaint that a sentence is

grossly disproportionate, constituting cruel and unusual punishment, a defendant must

present to the trial court a timely request, objection, or motion stating the specific grounds

for the ruling desired.” See Noland, 264 S.W.3d at 151; TEX. R. APP. P. 33.1(a).

B. Discussion

       Sanchez never raised the issue to the trial court that his punishment was

excessive, disproportionate, or cruel and unusual; the trial court imposed Sanchez’s




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sentence without any objections. He also did not file any post-trial motion to object to his

sentence. In other words, Sanchez complains that his sentence is cruel and unusual for

the first time on appeal.    We hold that Sanchez failed to preserve his Eighth and

Fourteenth Amendment complaints. See Noland, 264 S.W.3d at 151; see also TEX. R.

APP. P. 33.1(a).

       Moreover, even assuming Sanchez did preserve error, the sentence Sanchez

received was not excessive or disproportionate.        Indecency with a child carries a

punishment range of two to twenty years’ imprisonment. See TEX. PEN. CODE ANN. §

12.33(a) (West, Westlaw through 2017 1st C.S.).         Sanchez received the maximum

sentence possible, but it was still within the statutory range. See Trevino, 174 S.W.3d at

928. Therefore, we overrule his first issue.

                         III. CREDIT FOR COMMUNITY SUPERVISION

       In his second issue, Sanchez argues that he should receive credit towards his

twenty-year sentence for the six years he served on his ten-year deferred adjudication.

However, the Texas Code of Criminal Procedure specifies that when a defendant’s

community supervision is revoked,

       the judge shall credit to the defendant time served as a condition of
       community supervision in a substance abuse felony punishment facility
       operated by the Texas Department of Criminal Justice under Section
       493.009, Government Code, or other court-ordered residential program or
       facility, but only if the defendant successfully completes the treatment
       program in that facility.




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TEX. CODE CRIM. PROC. ANN. art. 42A.755 (West, Westlaw through 2017 1st C.S.). 1

Sanchez did not serve time in a substance abuse felony punishment facility let alone

successfully complete the treatment. Therefore, Sanchez is not entitled to credit for his

time spent on community supervision. See id. We overrule his second issue. 2

                                  IV. EQUAL PROTECTION CLAUSE

        In his third issue, Sanchez argues that Article 42.12 of the Texas Code of Criminal

Procedure violates the Equal Protection Clause of the Fourteenth Amendment because

the statute denied him the right to appeal the revocation of his community supervision

when similarly situated people not convicted of indecency with a child are entitled to an

appeal. 3 See TEX. CODE CRIM. PROC. ANN. art. 42A.102 (West, Westlaw through 2017 1st

C.S.). He also complains about that the statute unfairly restricts his ability to only be

placed on deferred adjudication because of the nature of his underlying offense.

However, courts have already held that article 42.12 is not facially unconstitutional. See

Trevino v. State, 164 S.W.3d 464, 464 (Tex. App.—Fort Worth 2005, no pet.) (observing

that the Legislature may properly limit or even “deny the right to appeal a criminal

conviction entirely”). We overrule his third issue.



        1 At the time appellant was placed on deferred adjudication community supervision, the statutes
governing community supervision were codified in article 42.12 of the Texas Code of Criminal Procedure.
Effective January 1, 2017, the community supervision statutes were re-codified in chapter 42A of the Code
of Criminal Procedure. See Act of May 26, 2015, 84th Leg., R.S., ch. 770, § 1.01, 2015 Tex. Gen. Laws
2321, 2321–65. Because the re-codification was a non-substantive revision of the community supervision
laws, we cite to the current statutes in this opinion.

        2   Sanchez does not raise, and thus we do not address, the issue of how much credit he is entitled
to for his thirty-day jail sentence.
        3 Again, Sanchez refers to section 42.12 of the Texas Code of Criminal Procedure, but we will refer
to the current statutes as they have been re-codified in chapter 42A.




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                         V. INEFFECTIVE ASSISTANCE OF COUNSEL

       In his fourth issue, Sanchez argues that his trial counsel was ineffective because

he only met with Sanchez the day before the motion to revoke hearing and because he

failed to call witnesses on Sanchez’s behalf. In his fifth issue, Sanchez argues that the

trial court should have granted his request for a hearing on his motion for new trial related

to his ineffective assistance of counsel claim.

A. Applicable Law

       To establish ineffective assistance of counsel, Sanchez must show by a

preponderance of the evidence that (1) his counsel’s representation fell below the

standard of prevailing professional norms, and (2) there is a reasonable probability that,

but for counsel’s deficiency, the result of the trial would have been different.        See

Strickland v. Washington, 466 U.S. 668, 669 (1984). Trial counsel should normally be

afforded an opportunity to explain his or her actions before being proclaimed as deficient,

especially if counsel’s reasons for failing to take an action do not appear in the record.

See Menefield v. State, 363 S.W.3d 591, 592–93 (Tex. Crim. App. 2012). If trial counsel

has not been given an opportunity to explain his or her actions, “then the appellate court

should not find deficient performance unless the challenged conduct was so outrageous

that no competent attorney would have engaged in it.” Id. Thus, direct appeal is usually

an inadequate tool for claims of ineffective assistance because the record has not been

developed sufficiently to make such findings. Id.

       A defendant suffers prejudice when there is a “reasonable probability” that the

result of the proceeding would have been different but for counsel’s errors. Thompson v.




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State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999).         “A reasonable probability is a

probability sufficient to undermine confidence in the outcome.” Id.

B. Discussion

      Sanchez gives no support for his assertion that his trial counsel’s performance was

deficient for only meeting with him the day before the hearing. He does, however, cite

several cases to support his claim that his counsel was ineffective for failing to call

witnesses. See King v. State, 649 S.W.2d 42 (Tex. Crim. App. 1983). Among the

witnesses Sanchez wished to have called, other than his aunt and sister, is the sex

offender treatment provider, who would have allegedly testified that Sanchez was “doing

well on sex offender probation and with treatment.”

      However, at the second motion to adjudicate, the trial court made an inquiry as to

Sanchez’s satisfaction with his counsel, to which Sanchez replied that he was satisfied

with his representation. Sanchez also informed the trial court that he did not need any

additional time to prepare for the hearing. Furthermore, Sanchez’s trial counsel was

never afforded an opportunity to explain his actions; courts are hesitant to declare a

counsel’s performance as deficient until they have been afforded an opportunity to explain

themselves. See Menefield, 363 S.W.3d at 592. Without a fully developed record, we

can only speculate as to the strategic choice to not call any additional witnesses; for

example, Sanchez’s trial counsel might have considered that calling witnesses would only

lead to detrimental testimony. See id. His trial counsel’s actions were not “so outrageous

that no competent attorney would have engaged in it.” See Goodspeed v. State, 187

S.W.3d 390, 392 (Tex. Crim. App. 2005).




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       More importantly, Sanchez has not established a “reasonable probability” that the

result of the proceeding would have been different had these witnesses been called or

had his counsel met with him more than one day before the hearing. See Thompson, 9

S.W.3d at 812. Sanchez pled guilty to the underlying offense of indecency with a child.

The stipulated evidence indicated that the claimant was a sixteen-year old special needs

child who told a CPS caseworker that Sanchez had done some “bad things” to him “about

ten times.” On top of the gravity of the underlying offense, Sanchez also tested positive

for cocaine, and at the first motion to adjudicate, the State showed that Sanchez failed to

complete the sex offender group therapy program. Even assuming without deciding, that

Sanchez’s trial counsel’s performance was deficient, we cannot conclude that Sanchez

suffered prejudice as a result. See Menefield, 363 S.W.3d at 592. We overrule Sanchez’s

fourth issue.

       In his fifth issue, Sanchez argues that the trial court abused its discretion by failing

to hold a hearing on his motion for new trial. See Smith v. Smith, 286 S.W.3d 333, 339

(Tex. Crim. App. 2009). According to Sanchez, he would have been able to develop the

record on his ineffective assistance of counsel claim had the trial court held a hearing.

However, as Sanchez acknowledges, the right to a hearing on a motion for new trial is

not absolute. See Rozell v. State, 176 S.W.3d 228, 230 (Tex. Crim. App. 2005). Given

the trial court’s familiarity with the case, the trial court could have reasonably concluded

from the record that Sanchez’s counsel did not render ineffective assistance of counsel,

especially considering Sanchez himself had just recently testified that he was satisfied

with his representation and that he did not need additional time. Additionally, the trial




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court may have concluded that there is nothing the additional witnesses could have added

that would have changed the outcome of the adjudication. See id. Therefore, the trial

court did not abuse its discretion in not holding a hearing on Sanchez’s motion for new

trial. See Smith, 286 S.W.3d at 339. We overrule Sanchez’s fifth issue.

                                        VI. CONCLUSION

       We affirm the trial court’s judgment.

                                                                NORA L. LONGORIA
                                                                Justice

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

Delivered and filed the
14th day of June, 2018.




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