                                                                                     ACCEPTED
                                                                                 01-14-00507-CR
                                                                      FIRST COURT OF APPEALS
                                                                              HOUSTON, TEXAS
                                                                            5/19/2015 5:17:37 PM
                                                                           CHRISTOPHER PRINE
                                                                                          CLERK

          Nos. 01-14-00505-CR, 01-14-00506-CR, 01-14-00507-CR
                                   In the
                          COURT OF APPEALS                   FILED IN
                                                       1st COURT OF APPEALS
                                  For the                  HOUSTON, TEXAS
                 FIRST SUPREME JUDICIAL DISTRICT5/19/2015 5:17:37 PM
                                At Houston             CHRISTOPHER A. PRINE
                                                              Clerk

     Appeal in Nos. 12-DCR-059-402, 12-DCR-059524, 12-DCR-059902
               240th District Court of Fort Bend County, Texas


                       DANIEL DESANTIAGO-CARAZA
                                Appellant
                                    v
                          THE STATE OF TEXAS
                                 Appellee


                        STATE’S APPELLATE BRIEF

Counsel for Appellee                JOHN F. HEALEY
                                    DISTRICT ATTORNEY
                                    268TH JUDICIAL DISTRICT
                                    FORT BEND COUNTY, TEXAS


                                    JOHN J. HARRITY, III
                                    ASSISTANT DISTRICT ATTORNEY
                                    FORT BEND COUNTY, TEXAS
                                    SBN # 09133100
                                    John.Harrity@fortbendcountytx.gov
                                    309 South Fourth Street, 2nd floor
                                    Richmond, Texas 77469
                                    281-341-4460 (Tel.)
                                    281-238-3340 (Fax)
                        IDENTIFICATION OF PARTIES

       Pursuant to Tex. R. App. P. 38.1, a complete list of the names of all interested
parties is provided below so the members of this Honorable Court may at once
determine whether they are disqualified to serve or should recuse themselves from
participating in the decision of the case.

Appellant:                                           Appellee:
DANIEL DESANTIAGO-CARAZA                             THE STATE OF TEXAS

Counsel for Appellee/State:                          Address(es):
JOHN F. HEALEY, JR.                                  Fort Bend County
District Attorney                                    District Attorney’s Office
of Fort Bend County, Texas                           301 Jackson Street, Rm 101
268TH Judicial District                              Richmond, Texas 77469

TYRA MCCOLLUM                                        (Same)
Assistant District Attorney
Fort Bend County, Tx.
(Trial)

STUTI PATEL                                          (Same)
Assistant District Attorney
Fort Bend County, Tx.
(Trial)

JOHN J. HARRITY, III                                 (Same)
Assistant District Attorney
Ft. Bend County, Tx.
(Appeal Only)




                                          ii
Counsel for Appellant:                            Address(es):
DON HECKER                                        200 IH 90A, Ste B
                                                  Richmond, Texas 77469
(Trial Only)


Counsel for Appellant:                            Address(es):

MICHAEL ELLIOTT                                   905 Front Street
                                                  Richmond, Texas 77469

(Appeal Only)

Trial Judge:
The Hon. Lee Duggan
240th District Court of Fort Bend County, Texas




                                     iii
                                    TABLE OF CONTENTS

SECTION                                                                                            PAGE


IDENTIFICATION OF PARTIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii

INDEX OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . v

STATEMENT REGARDING ORAL ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . vi

STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . vii

STATEMENT OF FACTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

SUMMARY OF THE ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

REPLY TO APPELLANT’S FIRST POINT OF ERROR. . . . . . . . . . . . . . . . . . . . 2


         PRAYER FOR RELIEF.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

CERTIFICATE OF COMPLIANCE.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8




                                                    iv
                                         INDEX OF AUTHORITIES

CASES                                                                                                       PAGE


Brumit v. State, 206 S.W.3d 639, 645 (Tex. Crim. App. 2006). . . . . . . . . . . . . . . . 6

Buerger v. State, 60 S.W.3d 358, 363 (Tex. App. - Houston [14th Dist.] 2001, pet.
ref’d). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Clark v. State, 365 S.W.3d 333, 339 (Tex. Crim. App. 2012). . . . . . . . . . . . . . . . . 4

Ex parte Brown, 158 S.W.3d 449, 456-57 (Tex. Crim. App. 2005).. . . . . . . . . . . . 5

Hull v. State, 67 S.W.3d 215, 218 (Tex. Crim. App. 2002). . . . . . . . . . . . . . . . . . . 4

Jackson v. State, 680 S.W.2d 809, 814 (Tex. Crim,. App. 1984).. . . . . . . . . . . . . . 5

Jiminez v. State, 32 S.W.3d 233, 235 (Tex. Crim. App. 2000).. . . . . . . . . . . . . . . . 4

Lopez v. State, 253 S.W.3d 680, 684 (Tex. Crim. App. 2008). . . . . . . . . . . . . . . . . 4

McClenan v. State, 661 S.W.2d 108, 110 (Tex. Crim. App. 1983), overruled on other
grounds by DeLeon v. Aguilar, 127 S.W.3d 1,5 (Tex. Crim. App. 2004). . . . . . . . 5

Steadman v. State, 31 S.W.3d 738, 741 (Tex. App. - Houston [1st Dist.] 2000, pet.
ref’d). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

STATUTES AND RULES


Tex. R. App. P. 33.1. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Tex. R. App. P. 38. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Tex. R. App. P. 38.1. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii



                                                               v
              STATEMENT REGARDING ORAL ARGUMENT

      The State does not believe oral argument is necessary in the present case.

However, should the Court decide that it wants to hear oral argument in this case, the

State would request that it be allowed to present oral argument.




                                          vi
           Nos. 01-14-00505-CR, 01-14-00506-CR, 01-14-00507-CR
                                    In the
                           COURT OF APPEALS
                                   For the
                  FIRST SUPREME JUDICIAL DISTRICT
                                 At Houston

      Appeal in Nos. 12-DCR-059-402, 12-DCR-059524, 12-DCR-059902
                240th District Court of Fort Bend County, Texas


                       DANIEL DESANTIAGO-CARAZA
                                Appellant
                                    v
                          THE STATE OF TEXAS
                                 Appellee

TO THE HONORABLE COURT OF APPEALS:

                          STATEMENT OF THE CASE


      On December 9, 2013, Appellant pled guilty to three offenses: arson in cause

number 12-DCR-59902; aggravated assault in cause number 12-DCR-59524; and

aggravated robbery in cause number 12-DCR-59402 ,with no agreed recommendation

as to punishment. The case was reset to await a pre-sentence investigative report. (1

R.R. 7). Following the hearing, the trial court found Appellant guilty, and sentenced

Appellant to sixty (60) years in the Institutional Division of the Texas Department of

Criminal Justice for the aggravated robbery with a deadly weapon, twenty (20) years

in the Institutional Division of the Texas Department of Criminal Justice for the

                                         vii
aggravated robbery and twenty (20) years in the Institutional Division of the Texas

Department of Criminal Justice for the arson. (2 R.R. 117).




                                        viii
                              STATEMENT OF FACTS

      The State challenges all factual assertions in the Appellant’s brief pursuant to

Tex. R. App. P. 38 and submits its account of the facts as follows and within its reply

to Appellant’s point of error.



                       SUMMARY OF THE ARGUMENT

      Appellant failed to preserve his sole issue on appeal. Further, both parties

were given the opportunity to fully present their evidence and there is nothing to

suggest the trial court failed to consider the same. Appellant’s complaints entitle

him to no relief on appeal.




                                          1
           REPLY TO APPELLANT’S FIRST POINT OF ERROR

    Reviewing the record in its entirety including the trial court’s comments,
Appellant has failed to demonstrate that the trial court refused to consider any of
the evidence or to fully consider the available punishment options, or in any way
                  violated Appellant’s due process rights.


      In his sole issue, appellant claims that he suffered a due process violation when

the trial court refused to consider the entire range of punishment and refused to

consider relevant evidence that mitigated his punishment. (App. Br. P. 8).

Facts Relevant to Appellant’s Claims on Appeal

      Officer James Thompson with the Rosenberg Police Department testified to his

role in the events that led to Appellant’s arrest on January 18, 2012. (1 R.R. 9-40).

After Thompson testified, the trial court inquired as to the necessity of the State

presenting the facts of the offense to which Appellant had already pled guilty. (1

R.R. 40). The State explained that although Appellant had pled guilty and all of the

papers to support the pleas were in order, that since there was more than one actor

alleged to be involved in the case that the State felt it necessary to show Appellant’s

involvement. (1 R.R. 41-44). Once the State explained that it wanted to show the

level of the Appellant’s involvement and the desire to have the trial court hear from

the victims, the trial court was satisfied and stated “go ahead and let’s just see how
                                          2
it goes”, and for the remainder of the hearing allowed both parties to present their

evidence through witnesses and exhibits. (3 R.R. 44-46). Appellant’s attorney stated

that he felt that “we should limit as much as we can.” (1 R.R. 44). Following the

prosecutor’s explanation, the trial court continued the hearing and heard from ten

witnesses including Appellant and admitted approximately 100 pages of exhibits

including a 49 page report offered by Appellant. (3 R.R.). Appellant’s counsel

reviewed the PSI report and asked that several changes be made. (2 R.R. 23-28).

      Appellant’s claims that the trial court “refused to consider evidence of

Appellant’s mental health history, his abusive childhood, and the recent death of a

very close friend which affected his mental state prior to the commission of the

offenses” or that the trial court “failed to consider that Appellant is the father of two

children and has a supportive family and job waiting for him” is entirely speculative

and not supported the record when viewed in its entirety. (App. Br. P. 8, 12).

Likewise, Appellant’s statement that “it appears that the Court pre-determined its

sentence before listening to either the State or Appellant” is unsupported by the

record and Appellant fails to point to any place in the record to support his claim.

(App. Br. P. 12). Finally Appellant’s argument that the “State” pre-determined

Appellant’s punishment and failed to consider any mitigating evidence presents no

error. (App. Br. P. 12). The record does reflect that Appellant was given a full

                                           3
opportunity to present evidence. Throughout the hearing, the trial court remained

engaged, asking for clarification regarding questions and answers propounded by

both parties.

Waiver

       In order to preserve error for appellate review, an appellant must make a timely

and specific objection. Clark v. State, 365 S.W.3d 333, 339 (Tex. Crim. App. 2012);

Lopez v. State, 253 S.W.3d 680, 684 (Tex. Crim. App. 2008). When “ party fails to

properly object at trial to constitutional errors at trial, these errors can be forfeited.”

Clark, 365 S.W.3d at 339. Appellant failed to present a timely request, objection, or

motion to complain about any alleged violation of due process. See Tex. R. App. P.

33.1. Even claims involving constitutional rights are subject to waiver on appellate

review if they are not preserved in the trial court. See Jiminez v. State, 32 S.W.3d

233, 235 (Tex. Crim. App. 2000). This includes claims regarding due process and

due course of law. See Hull v. State, 67 S.W.3d 215, 218 (Tex. Crim. App. 2002).

Failure to timely present these complaints to the trial court resulted in a waiver of

Appellant’s complaints on appeal. Appellant never complained to the trial court that

its conduct in any way violated his due process rights. Prior to pronouncement of

sentence, when asked by the trial court if there was any reason as to why sentence

should not be presented and why they should not be made final, Appellant gave no

                                            4
reason or lodged any objection. (4 R.R. 116).

Argument and Authorities of the Merits of Appellant’s claims

      A sentence imposed by the trial court is reviewed on appeal for an abuse of

discretion. Buerger v. State, 60 S.W.3d 358, 363 (Tex. App. - Houston [14th Dist.]

2001, pet. ref’d)(citing Jackson v. State, 680 S.W.2d 809, 814 (Tex. Crim,. App.

1984). Generally the sentence assessed will not be disturbed on appeal if it is within

the proper statutory punishment range. Id.

      The Due Process Clause of the Fourteenth Amendment provides that no State

shall “deprive any person of life, liberty, or property, without due process of law...”

U.S. CONST. Amend. XIV, § 1. The Due Course of Law provision in the Texas

Constitution provides that “[n]o citizen of this State shall be deprived of life, liberty,

property, privileges or immunities, or in any manner disenfranchised, except by the

due course of the law of the land.” Tex. Const. art. I, § 19. The trial court violates

a defendant’s due process rights if it assesses a predetermined sentence, arbitrarily

refuses to consider the entire punishment range, or refuses to consider the evidence

when determining punishment. See Ex parte Brown, 158 S.W.3d 449, 456-57 (Tex.

Crim. App. 2005). McClenan v. State, 661 S.W.2d 108, 110 (Tex. Crim. App. 1983),

overruled on other grounds by DeLeon v. Aguilar, 127 S.W.3d 1,5 (Tex. Crim. App.

2004). ”Absent a clear showing of bias, a trial court’s actions will be presumed to

                                            5
have been correct.” Brumit v. State, 206 S.W.3d 639, 645 (Tex. Crim. App. 2006);

Steadman v. State, 31 S.W.3d 738, 741 (Tex. App. - Houston [1st Dist.] 2000, pet.

ref’d).

          Despite appellant’s claims, the record in the present case reflects that the trial

court afforded Appellant a full hearing to present evidence on his behalf and there is

nothing in the record to indicate that the trial court did not consider the evidence

presented at the hearing. In fact, at the close of testimony and before closing

arguments, the trial court stated: “Counsel, may I hear from each of you briefly in

argument since I’ve read all of the instruments that have been filed and attentively

listen to you.” (2 R.R. 108). Notably, there was no objection or comment by

Appellant disputing the trial court’s statement.

          Appellant has wholly failed to identify where the trial court’s conduct violated

his due process rights. Reviewing the record in its entirety including the trial court’s

comments, Appellant has failed to demonstrate that the trial court refused to consider

any of the evidence or to fully consider the available punishment options, or in any

way violated Appellant’s due process rights. Appellant’s point of error should be

overruled.




                                               6
                             PRAYER FOR RELIEF

    WHEREFORE, PREMISES CONSIDERED, it is respectfully submitted that

all things are regular and that this Court find no reversible error in Appellant’s

conviction, affirm the judgment and sentence in all things, and order execution of the

judgment and sentence in accordance with the opinion of the Court.


                                       Respectfully submitted,
                                       John F. Healey, Jr.
                                       District Attorney, Fort Bend County
                                       268th Judicial District



                                        /s/ John J. Harrity, III
                                       John J. Harrity, III
                                       Assistant District Attorney
                                       Fort Bend County, Texas
                                       SBN # 09133100
                                       John.Harrity@fortbendcountytx.gov
                                       301 Jackson Street, Room 101
                                       Richmond, Texas 77469
                                       281-341-4460 (office)
                                       281-341-8638 (fax)




                                          7
                       CERTIFICATE OF COMPLIANCE

      This is to certify that in accordance with Texas Rule of Appellate Procedure

9.4(i)(3), this State’s Appellate Brief has been reviewed by the word count function

in WordPerfect, and contains 2197 words in its entirety.



                                                /s/ John J. Harrity, III
                                                John J. Harrity, III




                          CERTIFICATE OF SERVICE

      This is to certify that a true and correct copy of the foregoing instrument has

been forwarded to Appellant’s attorneys of record, Michael W. Elliott, 905 Front

Street, Richmond, Texas 77469 or via email at Mike @Elliotslaw.com, or via e-filing

on the date of the filing of the original with the Clerk of this Court.


                                                /s/ John J. Harrity, III
                                                John J. Harrity, III




                                           8
