Affirmed and Opinion filed July 16, 2015.




                                   In The

                   Fourteenth Court of Appeals

                            NO. 14-14-00389-CR

                          ERIC LOPEZ, Appellant

                                     V.
                     THE STATE OF TEXAS, Appellee

                  On Appeal from the 337th District Court
                          Harris County, Texas
                      Trial Court Cause No. 1372079

                              OPINION

      Appellant, Eric Lopez, was charged by indictment with indecency with a
child, which included an enhancement paragraph alleging a prior conviction for
indecency with a child. A jury convicted appellant of the charged offense and
found the enhancement allegation to be “true.” Appellant was sentenced to a
mandatory sentence of life imprisonment pursuant to Texas Penal Code Section
12.42(c)(2). See Tex. Penal Code Ann. § 12.42 (c)(2) (West, Westlaw through
2015 R.S.).
       In three issues, appellant contends (1) the automatic life sentencing
requirement violates the state and federal constitutions, (2) appellant was denied
effective assistance of counsel, and (3) the trial court erred in admitting evidence
of an extraneous offense. We affirm.

                   I. MANDATORY IMPOSITION OF LIFE SENTENCE

       In his first issue, appellant contends that the mandatory sentence of life
imprisonment under Texas Penal Code Section 12.42(c)(2) violates the
constitutional prohibition against cruel and unusual punishment found in the
Eighth Amendment and deprives him of due process of law under the Fourteenth
Amendment to the United States Constitution and Article 1, Section 13 of the
Texas Constitution.1 See U.S. CONST. amend. VIII, XIV; TEX. CONST. art. 1, § 13;
Tex. Penal Code Ann. § 12.42(c)(2). Section 12.42(c)(2) provides that a defendant
shall be punished by imprisonment in the Texas Department of Criminal Justice
for life if he is convicted of indecency with a child and has previously been
convicted of indecency with a child. See Tex. Penal Code Ann. § 12.42(c)(2); see
also id. § 21.11(a)(1) (West, Westlaw through 2015 R.S.).

       Relying on Penry v. Lynaugh, 492 U.S. 302 (1989), appellant asserts that the
mandatory imposition of the life sentence is unconstitutional under the Eighth and
Fourteenth Amendments because Section 12.42(c)(2) provides no opportunity for
the presentation of mitigating evidence. Appellant asserts that, even though his
conviction did not involve the punishment of death, mitigating evidence should be
considered to avoid constitutional violations. See id., 492 U.S. at 328 (holding
       1
          Appellant cites Article 1, Section 13 of the Texas Constitution; however, he presents no
argument explaining how the Texas Constitution offers greater protection than the United States
Constitution. Accordingly, he has not preserved that claim for review. See Pena v. State, 285
S.W.3d 459, 464 (Tex. Crim. App. 2009); Baldridge v. State, 77 S.W.3d 890, 894 (Tex. App.—
Houston [14th Dist.] 2002, pet. ref’d) (citing Puga v. State, 916 S.W.2d 547, 550 (Tex. App.—
San Antonio 1996, no pet.)).

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“when the choice is between life and death, that risk is unacceptable and
incompatible with the commands of the Eighth and Fourteenth Amendments.”).
Yet, the sentence at issue here is life imprisonment and not a death sentence;
therefore, the Penry holding is inapplicable.

      The Eighth Amendment provides: “Excessive bail shall not be required, nor
excessive fines imposed, nor cruel and unusual punishments inflicted.” See U.S.
CONST. amend. VIII.        Criminal sentencing is a matter left to “legislative
prerogative.” See Harmelin v. Michigan, 501 U.S. 957, 961–962 (1991) (Scalia, J.,
announcing judgment of the Court; Kennedy, J., concurring) (overruling an Eighth
Amendment objection to a mandatory life-without-parole sentence). The Harmelin
court determined that individualized sentencing shall not apply to a term-of-years
sentence because no sentence compares with the severity of a capital sentence,
stating:

      . . . [T]his claim [Eighth Amendment objection] has no support in the
      text and history of the Eighth Amendment. Severe, mandatory
      penalties may be cruel, but they are not unusual in the constitutional
      sense, having been employed in various forms throughout our
      Nation’s history. . . . There can be no serious contention, then, that a
      sentence which is not otherwise cruel and unusual becomes so simply
      because it is “mandatory.”
Id. at 994–95.

      Therefore, the Eighth Amendment does not grant to a criminal defendant the
right to present mitigating evidence when the State seeks a term-of-years sentence,
as it did here under Section 12.42(c)(2). See Tex. Penal Code Ann. § 12.42(c)(2);
Harmelin, 501 U.S. at 994–95; Ex Parte Chavez, 213 S.W.3d 320, 324 n.20 (Tex.
Crim. App. 2006) (denying complaint that due process required new punishment
proceeding and mentioning the Eighth Amendment does not mandate
individualized sentencing in non-capital cases); see also Lewis v. State, 428

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S.W.3d 860, 862–64 (Tex. Crim. App. 2014) (deciding in a capital case, the
mandatory life sentence under Texas Penal Code Section 12.31 did not present an
Eighth Amendment violation).

      Additionally, this court and a sister court have determined that the
mandatory life sentencing statute does not violate the Eighth Amendment. See
Lewis v. State, 448 S.W.3d 138, 147 (Tex. App.—Houston [14th Dist.] 2014, pet
ref’d) pet. for cert. filed (considering a due process challenge in a capital case and
holding mandatory sentencing statutes do not violate due process) (citing Moore v.
State, 54 S.W.3d 529, 544 (Tex. App.—Fort Worth 2001, pet. ref’d)); see also
Paolilla v. State, 342 S.W.3d 783, 791 (Tex. App.—Houston [14th Dist.] 2011,
pet. ref’d) (involving Texas Penal Code Section 12.31 and holding that, in a capital
case, mandatory life sentence to 17-year-old defendant did not amount to cruel and
unusual punishment and did not violate the Eighth Amendment); Wilkerson v.
State, 347 S.W.3d 720, 722–23 (Tex. App.—Houston [14th Dist.] 2011, pet. ref’d)
(construing Texas Penal Code Section 12.31, imposing mandatory life
imprisonment without parole in capital murder case where State did not seek the
death penalty, and concluding the Eighth Amendment constitutional challenge
failed); Welch v. State, 335 S.W.3d 376, 380 (Tex. App.—Houston [14th Dist.]
2011, pet. ref’d) (holding in a non-capital case where a fifteen-year sentence was
imposed, the Eighth Amendment did not require the trial court to consider
mitigating evidence of mental health); Cardona v. State, 768 S.W.2d 823, 827
(Tex. App.—Houston [14th Dist.] 1989, no pet.) (concluding the Legislature had
rational basis to impose mandatory sentence and, therefore, was not violative of
due process); see also Duran v. State, 363 S.W.3d 719, 722–23 (Tex. App—
Houston [1st Dist.] 2011, pet. ref’d) (deciding that mandatory life sentence under
Section 12.42(c)(2) did not violate the Eighth Amendment).


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      Without presenting argument on the contention, appellant also claims his
due process rights under the Fourteenth Amendment were violated by the
imposition of the mandatory life sentence on the same basis; specifically, that it
precludes the jury’s consideration of mitigating evidence. We reject appellant’s
due process challenge to Section 12.42(c)(2), as did the Moore court:

      Constitutional due process demands a rational basis for legislatively-
      created classifications creating punishment schemes for criminal
      offenses. Smith v. State, 737 S.W.2d 933, 939–39 (Tex. App.—Dallas
      1987, pet. ref’d). Although a defendant must be afforded some degree
      of due process at sentencing, the same degree of process is not
      required at sentencing as at trial. U.S. v. Rochester, 898 F.2d 971, 981
      (5th Cir. 1990). The test is whether the punishment scheme is
      rationally related to a legitimate state interest.
Moore, 54 S.W.3d at 544 (citing Williams v. State, 10 S.W.3d 370, 372–73 (Tex.
App.—Tyler 1999, pet. ref’d).

      We hold that the mandatory life sentence imposed under Texas Penal Code
Section 12.42(c)(2) is not unconstitutional under either the Eighth or Fourteenth
amendments to the United States Constitution. We overrule appellant’s first issue.

                          II. ASSISTANCE OF COUNSEL
      To prevail on an ineffective-assistance claim, an appellant must establish (1)
trial counsel’s representation fell below the objective standard of reasonableness,
based on prevailing professional norms, and (2) there is a reasonable probability
that the result of the proceeding would have been different but for counsel=s
deficient performance. Strickland v. Washington, 466 U.S. 668, 688–92 (1984);
see Hernandez v. State, 726 S.W.2d 53, 55–57 (Tex. Crim. App. 1986) (holding
Strickland standard applies to ineffective-assistance claims under Texas
Constitution).



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      We indulge a strong presumption that counsel’s actions fell within the wide
range of reasonable professional behavior and were motivated by sound trial
strategy. Strickland, 466 U.S. at 689; Thompson v. State, 9 S.W.3d 808, 813 (Tex.
Crim. App. 1999). Thus “the defendant must overcome the presumption that,
under the circumstances, the challenged action ‘might be considered sound trial
strategy.’” Thompson, 9 S.W.3d at 812. The presumption is overcome only when
evidence of ineffective assistance is “firmly founded and affirmatively
demonstrated in the record.” Melancon v. State, 66 S.W.3d 375, 378 (Tex. App.—
Houston [14th Dist.] 2001, pet. ref’d) (citing McFarland v. State, 928 S.W.2d 482,
500 (Tex. Crim. App. 1996)). The totality of the representation is the appropriate
context; counsel is not to be judged on isolated portions of his representation.
Strickland, 466 U.S. at 688.     Our review of counsel’s performance is highly
deferential, beginning with the strong presumption counsel’s actions were
reasonably professional and motivated by sound trial strategy. See Jackson v.
State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994).

      Where there is no record explaining the underlying reasons for counsel’s
conduct, we will not speculate about them. Perez v. State, 56 S.W.3d 727, 731
(Tex. App.—Houston [14th Dist.] 2001, pet. ref’d) (citing Gamble v. State, 916
S.W.3d 92, 93 (Tex. App.—Houston [1st Dist.] 1996, no pet.)); see also Ex parte
Varelas, 45 S.W.3d 627, 623 (Tex. Crim. App. 2001). The presumption is not
rebutted where the record is silent as to counsel’s rationale for his trial strategy.
Perez, 56 S.W.3d at 732. We will not find ineffective assistance unless counsel’s
conduct was “so outrageous that no competent attorney would have engaged in it.”
Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005).

      [I] is not sufficient that the appellant show, with the benefit of
      hindsight, that his counsel’s actions or omissions during trial were
      merely of questionable competence. Mata v. State, 226 S.W.3d 425,

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      430 (Tex. Crim. App. 2005). Rather, to establish that the attorney’s
      acts or omissions were outside the range of professionally competent
      assistance, appellant must show that counsel’s errors were so serious
      that he was not functioning as counsel. Patrick v. State, 906 S.W.2d
      481, 495 (1995).
Wert v. State, 383 S.W.3d 747, 752 (Tex. App.—Houston [14th Dist.] 2012,
no pet.).

      Appellant complains of one instance of ineffective assistance, contending his
counsel performed deficiently and mislead the jury when, at the punishment phase,
he asked the jury to render a “true” verdict:

      Ladies and gentlemen of the jury, you took an oath to examine the
      evidence carefully, to read the law and Court’s instructions that the
      Court is going to give you and to render a true verdict. That’s what
      we’re asking you to do. I want you to carefully consider the evidence
      that you’re going to be given, that you have been given and decide
      whether that enhancement paragraph is true or not and render a true
      verdict. That’s what Mr. Lopez is asking you to do. Thank you.
(Emphasis added).
      In his appellate brief, appellant asserts that this statement “may have only
intended to remind the jurors of their oaths it was still a dangerous phrase to use.”
He further suggests that this statement invited the jury to find “true” to the
enhancement paragraph, which mandated the automatic life sentence.               We
disagree.

      The record reflects that, pursuant to Texas Code of Criminal Procedure
article 35.22, the trial court administered the follow oath of the jurors:

      You and each of you do solemnly swear that in the case of the State of
      Texas against the defendant, you will render a true verdict according
      to the law and the evidence, so help you God.
See Tex. Code Crim. Proc. Ann. art. 35.22 (West, Westlaw through 2015 R.S.)
(Emphasis added).

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      We conclude that, when construing counsel’s argument in its entirety, it is
clear counsel was not inviting the jury to answer “true” to the enhancement
paragraph. Rather, counsel emphasized that the jury must decide whether the
enhancement paragraph was “true” or “not true” and then render a “true verdict,”
meaning an accurate verdict, consistent with the juror oath. Therefore, counsel’s
statement in closing argument was not “so outrageous that no competent attorney
would have engaged in it.” See Goodspeed, 187 S.W.3d at 392.

      Additionally, appellant entered a plea of “not true” to the enhancement
allegation when he was arraigned in the jury’s presence. Thus, appellant’s plea
further supports that counsel was not asking the jury to answer “true” to the
enhancement paragraph.

      Finally, in the punishment phase charge, the trial court instructed:

      The enhancement paragraph of the indictment alleges that before the
      commission of the offense for which you have found the defendant
      guilty, . . . the defendant was convicted of the felony offense of
      indecency of a child. To this allegation in the enhancement paragraph
      of the indictment the defendant has pleaded “not true”.
      If you believe from the evidence beyond a reasonable doubt that the
      allegations set out in the enhancement paragraph of the indictment are
      true, you will state in your verdict that you find “true” the allegations
      of the enhancement paragraph of the indictment; but unless you so
      believe, or if you have a reasonable doubt thereof, you will answer
      “not true” to the allegations of the enhancement paragraph of the
      indictment.
      In so doing, the trial court charged the jury that appellant pleaded “not true”
to the enhancement paragraph and the jury must find “true” or “not true” on
enhancement. Therefore, again, the trial court’s instruction reinforced to the jury
that counsel was not asking the jury to find the enhancement paragraph “true.”



                                         8
Instead, counsel was urging the jury to make the decision it considered “true”
under the facts of the case.

         Therefore, having reviewed the totality of the representation, we conclude
appellant has not met his burden on his ineffective-assistance claim.          See
Robertson v. State, 187 S.W.3d 475, 483 (Tex. Crim. App. 1990) (en banc) (citing
McFarland v. State, 845 S.W.2d 824, 843, overruled on other grounds by Bingham
v. State, 915 S.W.2d 9 (Tex. Crim. App. 1992)). We overrule appellant’s second
issue.

                      III. EVIDENCE OF EXTRANEOUS OFFENSE
         In his third issue, appellant contends the trial court erred by admitting
evidence of an extraneous offense of indecency with a child because under Texas
Rule of Evidence 403, its probative value was substantially outweighed by the
danger of unfair prejudice. See Tex. R. Evid. 403 (providing that the court “may
exclude relevant evidence if its probative value is substantially outweighed by a
danger of one or more of the following: unfair prejudice, confusing the issues,
misleading the jury, undue delay, or needlessly presenting cumulative evidence.”).

         Here, appellant lodged numerous objections at trial challenging the
admissibility of witness testimony. He never asserted a Rule 403 objection as to
the extraneous offense of indecency with a child. Thus, because appellant urges a
different legal theory on appeal than what he presented to the trial court, he has
waived his Rule 403 argument. See Tex. R. App. P. 33.1(a) (requiring that to
preserve appellate complaint, party must present objection to trial court with
sufficient specificity to make trial court aware of complaint, and obtain ruling);
Wilson v. State, 71 S.W.2d 346, 349 (Tex. Crim. App.2002) (holding that to
preserve error, the complaining party’s trial objection must be the same as the
appellate complaint). We overrule appellant’s third issue.

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      Having overruled appellant’s three issues, we affirm.




                                      /s/    John Donovan
                                             Justice



Panel consists of Justices Christopher, Donovan, and Wise.
Publish — Tex. R. App. P. 47.2(b).




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