                             NUMBER 13-09-188-CR

                            COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                    CORPUS CHRISTI - EDINBURG


JOE ANGEL ZAVALA,                                                          Appellant,

                                           v.

THE STATE OF TEXAS,                                                         Appellee.


                   On appeal from the 319th District Court
                         of Nueces County, Texas.


                         MEMORANDUM OPINION

        Before Chief Justice Valdez and Justices Yañez and Vela
                Memorandum Opinion by Justice Vela

      Appellant, Joe Angel Zavala, entered an “open” plea of guilty to the first-degree

felony offense of possession with intent to deliver a controlled substance, four grams or

more but less than 200 grams of heroin. See TEX . HEALTH & SAFETY CODE ANN . §

481.112(d) (Vernon 2003). After hearing evidence on punishment, the trial court assessed
punishment at fifty years’ imprisonment. By four issues,1 appellant complains that: (1) his

sentence was excessive and violated the Eighth Amendment prohibition against cruel and

unusual punishment; (2) his sentence violated his right to due process of law; (3) the

sentencing system facially violates due process and the Eighth Amendment; and (4) he

received ineffective assistance of trial counsel. We affirm.

                                                    I. BACKGROUND

         On February 4, 2009, the trial court held a plea hearing at which Zavala entered an

“open” plea of guilty to the charged offense. The trial court accepted the plea and admitted

into evidence State’s exhibit 1, Zavala’s judicial confession and stipulation. After hearing

testimony from both sides on punishment, the trial court assessed punishment at fifty

years’ imprisonment.

         On February 24, 2009, Zavala’s new attorney filed a “MOTION FOR

RECONSIDERATION OF JUDGMENT AND SENTENCE PREVIOUSLY IMPOSED” in

which he urged the trial court to reconsider the sentence because it was “excessive.” After

hearing evidence on the motion, the trial court denied relief.

                                                     II. DISCUSSION

A. CRUEL AND UNUSUAL PUNISHMENT

         In his first issue, Zavala contends that his sentence was excessive and that it

violated the Eighth Amendment prohibition against cruel and unusual punishment. See

U.S. CONST . amend. VIII.2 The Eighth Amendment does not require strict proportionality


         1
           The trial court signed a docum ent entitled, “T R IAL C O UR T ’S C ER TIFIC ATIO N O F D EFEN D AN T ’S R IG H T O F
A PPEAL ” in which the court certified that this case “is not a plea-bargain case, and the defendant has the right
of appeal.”

         2
          The Eighth Am endm ent to the United States Constitution provides that “[e]xcessive bail shall not be
required, nor excessive fines im posed, nor cruel and unusual punishm ent inflicted.” U.S. C ON ST . am ends.
VIII, XIV; see T EX . C ON ST . art. I, § 13.
                                                               2
between the crime and the sentence; rather, it forbids extreme sentences that are “grossly

disproportionate” to the crime. Ewing v. California, 538 U.S. 11, 23 (2003). The precise

contours of the “grossly disproportionate” standard are unclear, but it applies only in

“exceedingly rare” and “extreme” cases. See Lockyer v. Andrade, 538 U.S. 63, 73 (2003).

Texas courts have traditionally held that, as long as the punishment assessed falls within

the punishment range prescribed by the Legislature in a valid statute, the punishment is

not excessive. See Jordan v. State, 495 S.W.2d 949, 952 (Tex. Crim. App. 1973); Trevino

v. State, 174 S.W.3d 925, 928 (Tex. App.–Corpus Christi 2005, pet. ref’d); see also

Escochea v. State, 139 S.W.3d 67, 80 (Tex. App.–Corpus Christi 2004, no pet.).3

        Zavala’s sentence fell within the punishment range for a first-degree felony. See

TEX . PENAL CODE ANN . § 12.32(a) (Vernon Supp. 2009) (stating that “[a]n individual

adjudged guilty of a felony of the first degree shall be punished by imprisonment in the

Texas Department of Criminal Justice for life or for any term of not more than 99 years or

less than five years.”). However, that does not end the inquiry. Texas courts recognize

that a prohibition against a grossly disproportionate sentence survives under the federal

constitution apart from any consideration whether the punishment assessed is within the

statute’s punishment range.            Winchester v. State, 246 S.W.3d 386, 388 (Tex.

App.–Amarillo 2008, pet. ref’d); Mullins v. State, 208 S.W.3d 469, 470 (Tex.

App.–Texarkana 2006, no pet.).

        This Court has recognized that “the viability and mode of application of proportionate

analysis . . . has been questioned since the Supreme Court's decision in Harmelin v.

Michigan, 501 U.S. 957 (1991).” Trevino, 174 S.W.3d at 928 (citing McGruder v. Puckett,


        3
        Vera v. State, Nos. 13-05-169, 170-CR, 2006 W L 5181930, at *3 (Tex. App.–Corpus Christi Aug. 29,
2008, pet. ref’d) (m em . op., not designated for publication).
                                                   3
954 F.2d 313, 315-16 (5th Cir. 1992) (discussing the various opinions issued in Harmelin

and their impact on the Solem decision4)); see Sullivan v. State, 975 S.W.2d 755, 757-58

(Tex. App.–Corpus Christi 1998, no pet.) (discussing the implications of the Harmelin

opinion and reviewing the proportionality of defendant's sentence under the Solem and

McGruder tests). Assuming, arguendo, the viability of a proportionality review, as we did

in Sullivan, we will apply both the Solem and McGruder tests to the facts of this case. See

Sullivan, 975 S.W.2d at 757-58.5 In both Solem and McGruder, we look first at the gravity

of the offense and the harshness of the penalty. Solem v Helm, 463 U.S. 272, 290-91

(1983); McGruder, 954 F.2d at 316.

        1. Gravity of the Offense

        We judge the gravity of the offense in light of the harm caused or threatened to

society and the offender’s culpability. Moore v. State, 54 S.W.3d 529, 542 (Tex. App.–Fort

Worth 2001, pet. ref’d) (citing Solem, 463 U.S. at 291-92). With respect to appellant’s

culpability, the evidence and testimony from the plea hearing showed that Robstown police

executed a search warrant at the home of appellant and his wife, Denise Diaz. Police

found black tar heroin in their car and house. Police found powdered heroin in Diaz’s

purse. The total amount of heroin seized was 44.57 grams. Drug paraphernalia found in

their home included a container of lactose, two coffee grinders, a knife, baggies, and a

scale. The scale and grinders had heroin residue on them. While at the police station,

appellant provided a written statement in which he stated that all of the heroin, including

the heroin in his wife’s purse, was his. Robstown police officer Derly Flores testified that


        4
            See Solem v. Helm, 463 U.S. 272 (1983).

        5
         See also McGiffin v. State, No. 13-05-561-CR, 2006 W L 2294553, at *1 (Tex. App.–Corpus Christi,
Aug. 10, 2006, no pet.) (m em . op., not designated for publication).
                                                      4
lactose is mixed with heroin in order to increase the amount of heroin. Appellant had “a

large amount” of heroin, which after being “cut” with lactose and ground into a powder,

could sell for $10,000.

        With respect to the harm caused or threatened to society, Officer Flores testified

that black tar heroin is “[a] real bad problem” in Robstown and that “most of the crime in

Robstown emanates from the black tar heroin problem.” Appellant’s wife testified that

appellant had been dealing and using heroin prior to getting “busted.” We conclude that

the gravity of the offense weighs in favor of a finding that the punishment was not

excessive. See Thomas v. State, 916 S.W.2d 578, 583 (Tex. App.–San Antonio 1996, no

pet.) (stating that “[i]t is common knowledge that possession, use, and distribution of illegal

drugs represents one of the greatest problems affecting the health and welfare of our

population. Studies clearly demonstrate the direct nexus between illegal drugs and crimes

of violence. . . .”).

        2. Harshness of the Penalty

        Appellant pleaded guilty to the first-degree-felony offense of possession with intent

to deliver a controlled substance, four grams or more but less than 200 grams of heroin.

The offense appellant committed is classified as within the second most serious category

of offenses in Texas; only capital-offense felonies are more serious. See TEX . PENAL CODE

ANN . § 12.04(a) (Vernon 2003) (classifying felonies according to the relative seriousness

of the offense). Thus, the Legislature considered the crime of possession with intent to

deliver 44.57 grams of heroin serious enough to deserve a sentence of up to life

imprisonment. Appellant’s fifty-year sentence fell within the middle of the punishment

range for a first-degree felony. See TEX . PENAL CODE ANN . § 12.32(a). In light of the

seriousness of the crime to which appellant pleaded guilty and the fact that he had the
                                          5
paraphernalia necessary to increase the amount of heroin for sale, we cannot say his fifty-

year sentence is disproportionate to his offense. We therefore find that his punishment is

not grossly disproportionate to the offense for which he was convicted. This finding ends

our analysis under McGruder. See McGruder, 954 F.2d at 316; see also Sullivan, 975

S.W.2d at 757. Because there is no evidence in the appellate record of the sentences

imposed for other similar crimes in Texas or for the same crimes in other jurisdictions, we

cannot perform a comparative evaluation using the remaining Solem factors. See Solem,

463 U.S. at 292; see also Sullivan, 975 S.W.2d at 757-58. Therefore, we hold that

appellant's punishment is neither grossly disproportionate nor cruel and unusual. We

overrule issue one.

B. DUE PROCESS

       In his second issue, Zavala contends that the trial court violated his right to due

process under the Fourteenth Amendment to the United States Constitution because the

sentence is arbitrary, random, and capricious. The Due Process Clause of the Fourteenth

Amendment provides that “no State may deprive any person of life, liberty, or property

without due process of law.” Euler v. State, 218 S.W.3d 88, 91 (Tex. Crim. App. 2007)

(internal quotation marks omitted); see U.S. CONST . amend. XIV, § 1. The touchstone of

due process is fundamental fairness. Gagnon v. Scarpelli, 411 U.S. 778, 790 (1973).

       “[A] trial court’s arbitrary refusal to consider the entire range of punishment in a

particular case violates due process,” Ex parte Brown, 158 S.W.3d 449, 456 (Tex. Crim.

App. 2005). Likewise, a trial court “denies due process when it refuses to consider the

evidence and imposes a predetermined sentence.” Cole v. State, 931 S.W.2d 578, 579-80

(Tex. App.–Texarkana 1995, pet. ref’d). However, “the defendant has no substantive right

to a particular sentence within the range authorized by statute, . . . .” Gardner v. Florida,
                                            6
430 U.S. 349, 358 (1977). “When a defendant waives a jury, the trial judge has discretion

to assess the punishment within the range provided by law which he finds appropriate in

the circumstances.” Morano v. State, 572 S.W.2d 550, 551 (Tex. Crim. App. 1978). “The

decision of what particular punishment to assess within the statutorily prescribed range for

a given offense is a normative, discretionary function.” Barrow v. State, 207 S.W.3d 377,

379-80 (Tex. Crim. App. 2006). “Subject only to a very limited, ‘exceedingly rare,’ and

somewhat amorphous Eighth Amendment gross-disproportionality review, a punishment

that falls within the legislatively prescribed range, and that is based upon the jury’s (or trial

court’s, in a bench trial) informed normative judgment, is unassailable on appeal.” Id. at

381 (footnote number omitted).

       At the plea hearing, the trial court heard testimony and received evidence

concerning the facts surrounding the offense. The trial court also heard testimony from

appellant’s wife, who stated that she and appellant had used heroin for seven years and

needed help. She testified appellant had been dealing heroin for approximately seven

months before getting “busted.” He recently got a job and was going to stop dealing. She

also testified appellant had never been previously arrested.

       Thus, the trial court had evidence on which to rely upon when sentencing appellant

to a prison term that fell in the middle of the punishment range. The record does not show

that the trial court arbitrarily imposed a predetermined punishment or that it failed to

consider the full punishment range. Moreover, the record does not show that the trial court

imposed the sentence in an arbitrary, capricious, or random manner. Accordingly, the trial

court did not abuse its discretion when assessing punishment. See Montgomery v. State,

810 S.W.2d 372, 380 (Tex. Crim. App. 1990) (stating that a trial court abuses its discretion

when it acts without reference to any guiding rules and principles, or if it acts in an arbitrary
                                             7
or capricious manner). We hold that appellant failed to show that the trial court violated

his due process rights in assessing punishment. Issue two is overruled.

C. CONSTITUTIONALITY OF SENTENCING SYSTEM

        In his third issue, appellant contends that the “sentencing system” facially violates

the Eighth Amendment and his right to due process, because his sentence is arbitrary,

random, and capricious. This issue presents a challenge to the facial validity of section

12.32(a) of the Texas Penal Code, which prescribes the punishment range for a first-

degree felony. See TEX . PENAL CODE ANN . § 12.32(a).

        Appellant did not urge this complaint when the trial court assessed punishment or

in his motion for reconsideration. In Kareney v. State, the court “conclude[d] that a

defendant may not raise for the first time on appeal a facial challenge to the

constitutionality of a statute.” 281 S.W.3d 428, 434 (Tex. Crim. App. 2009). Furthermore,

we have previously stated that the trial court did not assess punishment in an arbitrary,

random, or capricious manner. Issue three is overruled.6

D. INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL

        In his fourth issue, appellant contends that he received ineffective assistance of trial

counsel. See U.S. CONST . amend. VI.




        6
           Assum ing, arguendo, that appellant had preserved this com plaint, we note that “[a] facial challenge
to a statute is the m ost difficult challenge to m ount successfully because the challenger m ust establish that
no set of circum stances exists under which the statute will be valid.” Santikos v. State, 836 S.W .2d 631, 633
(Tex. Crim . App. 1992). Because “a statute m ay be valid as applied to one set of facts and invalid as applied
to another, ‘it is incum bent upon the [appellant] to show that in its operation the statute is unconstitutional as
to him in his situation; that it m ay be unconstitutional as to others is not sufficient.’” Id. (quoting Parent v.
State, 621 S.W .2d 796, 797 (Tex. Crim . App. 1981)). Here, the record does not show that the trial court
arbitrarily im posed a predeterm ined punishm ent or failed to consider the full punishm ent range. The fifty-year
sentence was well within the punishm ent range available for the offense. Therefore, appellant has failed to
show that in its operation the statute is unconstitutional as applied to him in his situation. See id.
                                                        8
       1. Standard of Review

       Under Strickland v. Washington, a defendant seeking to challenge counsel’s

representation must show that counsel’s performance (1) was deficient and (2) prejudiced

his or her defense. Smith v. State, 286 S.W.3d 333, 340 (Tex. Crim. App. 2009) (citing

Strickland v. Washington, 466 U.S. 668, 687 (1984)). “To show deficiency, ‘the appellant

must prove by a preponderance of the evidence that his counsel’s representation

objectively fell below the standard of professional norms.’” Id. (quoting Mitchell v. State,

68 S.W.3d 640, 642 (Tex. Crim. App. 2002)). To show prejudice, appellant “‘must show

there is a reasonable probability that, but for his counsel’s unprofessional errors, the result

of the proceeding would have been different.’” Id. (quoting Strickland, 466 U.S. at 694).

“‘Reasonable probability’ is a ‘probability sufficient to undermine confidence in the

outcome,’ meaning ‘counsel’s errors were so egregious as to deprive the defendant of a

fair trial, a trial whose result is reliable.’” Id. (quoting Strickland, 466 U.S. at 687, 694).

“Because ‘[t]he reasonableness of counsel’s choices often involves facts that do not

appear in the appellate record,’ the record will generally ‘not be sufficient to show that

counsel’s representation was so deficient as to meet the first part of the Strickland

standard.’” Id. at 341 (quoting Mitchell, 68 S.W.3d at 642).

       2. Analysis

       a. Inadequate Time to Prepare

       On January 16, 2009, the trial court appointed an attorney to represent appellant

in this case. On February 4, 2009, appellant pleaded guilty to the offense, and the trial

court assessed punishment. Appellant argues that he was denied effective assistance of

counsel because trial counsel did not have enough time “to research sentencing decisions

in relevant jurisdictions, particularly sentences for community supervision that are not
                                              9
appealed.” An attorney’s failure to investigate all aspects of a case, including punishment,

can support a finding that he or she rendered ineffective assistance. See McFarland v.

State, 928 S.W.2d 482, 501 (Tex. Crim. App. 1996).

       We cannot equate a purported failure to research sentencing decisions in relevant

jurisdictions to a failure to investigate, absent something more in the record. Because we

are limited to the record before us, the record must support appellant’s assertions.

McFarland, 928 S.W.2d at 500. This appellate record is devoid of any evidence showing

that trial counsel was either unprepared, did not have enough time to perform the research,

or that he failed to perform this research. The fact that trial counsel did not present any

sentencing decisions from relevant jurisdictions to the trial court does not mean that he did

not perform this research. Counsel may have decided that presenting evidence of

sentencing decisions from relevant jurisdictions might actually tend to increase appellant’s

sentence. If counsel's reasons for his conduct do not appear in the record and there is “at

least the possibility” that the conduct could have been grounded in legitimate trial strategy,

we will defer to counsel's decisions and deny relief on an ineffective assistance claim on

direct appeal. Garza v. State, 213 S.W.3d 338, 348 (Tex. Crim. App. 2007).

       When an “appellant’s claim is not determinable from the record, we must decide

whether his motion and affidavit show reasonable grounds that could entitle him to relief.”

Smith, 286 S.W.2d at 341. To do so, appellant must allege facts that would reasonably

show that trial counsel’s representation fell below the standard of professional norms and

that there is a reasonable probability that, but for trial counsel’s conduct, the result of the

proceeding would have been different. Id. (citing Strickland, 466 U.S. at 687).

       Here, the motion for reconsideration did not allege any facts that trial counsel’s

representation fell below the standard of professional norms and that there is a reasonable

                                              10
probability that, but for trial counsel’s conduct, the result of the proceeding would have

been different. The motion for reconsideration did not include any affidavits. A review of

the record reveals that no motion for new trial was filed. We find that the motion for

reconsideration did not provide reasonable grounds to believe that appellant could satisfy

either prong of Strickland. Strickland, 466 U.S. at 690. Because a strong presumption

exists that trial counsel’s actions fall within the wide range of reasonable professional

assistance, we cannot say appellant received ineffective assistance of counsel. See id.

       b. Failure to Call Witnesses

       Appellant contends that he received ineffective assistance of counsel because trial

counsel called only one witness, his wife, to help mitigate punishment. However, we

cannot equate calling only one punishment witness to a failure to investigate, absent

something more in the record. The record is devoid of any evidence about why, be it for

strategic purposes or otherwise, trial counsel elected to call only one witness to mitigate

punishment. Appellant does not state the names of those witnesses that trial counsel

should have called in order to mitigate punishment, and he does not state what their

testimony would have shown. Because a strong presumption exists that trial counsel’s

actions fall within the wide range of reasonable professional assistance, we cannot say

appellant received ineffective assistance of counsel. See Strickland, 466 U.S. at 690.

       c. Failure To Argue Proportionality

       Appellant contends he received ineffective assistance of counsel because trial

counsel made “no attempt to argue proportionality to the trial court . . . and presented no

evidence to the court concerning the punishments being levied by Texas courts for similar

offenses.” As previously stated in issue one, appellant has not met the requirement of a

threshold determination that the sentence is grossly disproportionate to the crime. Thus,

                                            11
he cannot show a reasonable probability that, but for his trial counsel’s failure to argue

proportionality to the trial court or to present evidence of punishments being levied by

Texas courts for similar offenses, the result would have been different. See Smith, 286

S.W.3d at 340. Issue four is overruled.

                                     III. CONCLUSION

       We affirm the trial court’s judgment.



                                                    ROSE VELA
                                                    Justice


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

Delivered and filed the 25th
day of March, 2010.




                                               12
