                              Fourth Court of Appeals
                                     San Antonio, Texas

                                 MEMORANDUM OPINION
                                        No. 04-13-00071-CR

                                    Jose Santos Acosta ISIDRO,
                                             Appellant

                                                v.
                                           The STATE of
                                        The STATE of Texas,
                                              Appellee

                         From the 22nd District Court, Comal County, Texas
                                    Trial Court No. CR2001-98
                             Honorable Gary L. Steel, Judge Presiding

Opinion by:       Catherine Stone, Chief Justice

Sitting:          Catherine Stone, Chief Justice
                  Sandee Bryan Marion, Justice
                  Patricia O. Alvarez, Justice

Delivered and Filed: October 9, 2013

AFFIRMED

           Jose Santos Acosta Isidro appeals the trial court’s judgment adjudicating his guilt and

sentencing him to twenty years’ imprisonment. On appeal, Isidro asserts: (1) he is entitled to a

new trial to determine the voluntariness of his original plea; (2) the evidence is insufficient to

support the sentence imposed; (3) the sentence imposed constitutes cruel and unusual punishment;

and (4) the sentencing procedure and sentence imposed violate procedural due process, substantive

due process, and the ex post facto clause. We affirm the trial court’s judgment.
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                                              BACKGROUND

        Isidro was charged in a four-count indictment with two counts of indecency with a child,

one count of attempted aggravated sexual assault, and one count of aggravated sexual assault. In

accordance with a plea bargain agreement, the State proceeded on only one count of indecency

with a child, which was a second degree felony with a sentencing range from two to twenty years’

imprisonment. On December 16, 2002, Isidro pled guilty and was placed on ten years’ deferred

adjudication community supervision. On August 16, 2010, the State filed a motion to adjudicate

Isidro’s guilt, alleging that Isidro had been convicted of illegal entry into the United States after

being deported and failed to pay his monthly community supervision and sexual assault program

fees. Based on Isidro’s plea of true to the violations, the trial court adjudicated his guilt and

sentenced him to twenty years’ imprisonment.

                                             ORIGINAL PLEA

        In his first point of error, Isidro asserts he is entitled to a new trial to determine the

voluntariness of his original plea. “[A] defendant placed on deferred adjudication community

supervision may raise issues relating to the original plea proceeding … only in appeals taken when

deferred adjudication community supervision is first imposed.” Manuel v. State, 994 S.W.2d 658,

661-62 (Tex. Crim. App. 1999).             Isidro did not appeal from the order granting deferred

adjudication, and this court is without jurisdiction to consider his issue relating to the voluntariness

of his original plea in this appeal. Id.

                                  SUFFICIENCY OF THE EVIDENCE

        Isidro next challenges the legal and factual sufficiency of the evidence to support the

sentence imposed by the trial court. Initially, we note that the Texas Court of Criminal Appeals

has clarified that the only standard a reviewing court applies in determining the sufficiency of



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evidence is the Jackson v. Virginia 1 legal-sufficiency standard. Brooks v. State, 323 S.W.3d 893,

895 (Tex. Crim. App. 2010). Moreover, a trial court’s decision regarding what sentence to impose

is a “normative process, not intrinsically factbound.” Ex parte Chavez, 213 S.W.3d 320, 323 (Tex.

Crim. App. 2006). “Subject only to a very limited, ‘exceedingly rare,’ and somewhat amorphous

Eighth Amendment gross-disproportionality review, a punishment that falls with the legislatively

prescribed range, and that is based upon the sentencer’s informed normative judgment, is

unassailable on appeal.” Id. at 323-24. Therefore, we do not review the sentence imposed by the

trial court under a sufficiency of the evidence standard. See id., see also Jarvis v. State, 315 S.W.3d

158, 161-62 (Tex. App.—Beaumont 2010, no pet.).

                                CRUEL AND UNUSUAL PUNISHMENT

           In his third point of error, Isidro contends the imposition of the maximum sentence of

twenty years’ imprisonment constituted cruel and unusual punishment because the initial plea

bargain capped the sentence at ten years and the nature of the community supervision violations

did not warrant the maximum sentence. Generally, sentences falling within the statutory limits are

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

State, 256 S.W.3d 341, 343-44 (Tex. App.—San Antonio 2007, no pet.). A sentence may,

however, violate the Eighth Amendment if it is grossly disproportionate to the offense committed.

Solem v. Helm, 463 U.S. 277, 290 (1983); Smith, 256 S.W.3d at 344. In analyzing a proportionality

challenge, we 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. Solem, 463 U.S. at 392; State v. Stewart, 282 S.W.3d 729,

736 (Tex. App.—Austin 2009, no pet.). We need only consider the second and third factors,



1
    443 U.S. 307 (1979).

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however, if we determine that the sentence is grossly disproportionate to the offense after

comparing the gravity of the offense against the severity of the sentence. Solem, 463 U.S. at 392;

see also Smith, 256 S.W.3d at 344. In judging the gravity of the offense, we consider the “harm

caused or threatened to the victim or society, and the culpability of the offender.” Solem, 463 U.S.

at 292.

          We initially note that the trial judge was not bound by the cap agreed to in relation to the

original plea. The bargain with regard to the cap was satisfied by the initial sentence of deferred

adjudication community supervision. Ex parte Huskins, 176 S.W.3d 818, 819 (Tex. Crim. App.

2005) (quoting Ditto v. State, 988 S.W.2d 236, 239 (Tex. Crim. App. 1999)). “‘[O]nce the trial

court proceeds to adjudication, it is restricted in the sentence only by the relevant statutory limits.’”

Id. (quoting Von Schounmacher v. State, 5 S.W.3d 221, 223 (Tex. Crim. App. 1999)).

          We also note that Isidro relies heavily on the nature of his probation violations to challenge

the sentence imposed by the trial court. As previously noted, however, our focus is on the gravity

of the offense for which Isidro is being sentenced. See Atchison v. State, 124 S.W.3d 755, 760

(Tex. App.—Austin 2003, pet. ref’d) (“the correct question [is] whether the twenty-year sentence

was warranted by the crime for which appellant was convicted, and not whether it was warranted

by the supervisory violations proved at the adjudication hearing”). In this case, the offense is

indecency with a child, and the record reveals that the victim of the offense was Isidro’s nine-year-

old stepson. The child reported that Isidro had abused him on numerous occasions over a three

and one-half year period, which included Isidro penetrating the child’s anus with his penis even

after the child screamed from the pain. The abuse was discovered by the victim’s mother who

found Isidro in her son’s bedroom with his pants removed, attempting to penetrate her son’s anus.

The sexual assault nurse examiner found numerous tears and abrasions to the victim’s anus

consistent with the described abuse. Given the gravity of the offense and the harm caused to the
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victim, we hold that the imposition of the maximum sentence of twenty years’ imprisonment is

not grossly disproportionate to the offense.

                                DUE PROCESS AND EX POST FACTO CLAUSE

         In his final point of error, Isidro asserts, “The sentencing procedure utilized and the

maximum sentence imposed violate procedural due process, substantive due process, and the ex

post facto clause.” The State contends this issue is multifarious. We agree. Isidro’s complaint is

multifarious because it is based on more than one legal theory. Davis v. State, 329 S.W.3d 798,

820 (Tex. Crim. App. 2010). “As an appellate court, we may refuse to review a multifarious issue

or we may elect to consider the issue if we are able to determine, with reasonable certainty, the

alleged error about which the complaint is made.” Prihoda v. State, 352 S.W.3d 796, 801 (Tex.

App.—San Antonio 2011, pet. ref’d); see also Davidson v. State, 249 S.W.3d 709, 717 n.2 (Tex.

App.—Austin 2008, pet. ref’d).

         The only alleged error that we can discern with reasonable certainty from the argument

raised in Isidro’s brief is his complaint that the application of article 42.12, sections 21(e) and 24

of the Texas Code of Criminal Procedure violated the Ex Post Facto Clause. Isidro contends the

application of the due diligence affirmative defense in article 42.12, sections 21(e) and 24 deprived

him of the broader common law due diligence defense that was available when he committed the

original offense. 2 As the State notes, however, this same argument was rejected by our sister court

in Ramirez v. State, 184 S.W.3d 392, 394-96 (Tex. App.—Dallas 2006, no pet.).




2
  The common law due diligence defense required the State to prove by a preponderance of the evidence that it used
due diligence in executing a capias and holding a hearing on a motion to revoke where the defendant was apprehended
after the expiration of his probation term. Ramirez v. State, 184 S.W.3d 392, 394 (Tex. App.—Dallas 2006, no pet.).
This defense was replaced by the statutory defense in Article 42.12, section 24 which applies only to allegations of
the probationer’s failure to report or failure to remain in a specified place and requires only that the State attempt to
contact the probationer at his last known residence address or last known employment address. See id.; TEX. CODE
CRIM. PROC. ANN. art. 42.12, § 24 (West Supp. 2012).

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         In Ramirez, the Dallas court first noted that in order for a law to violate the ex post facto

prohibition, the law must be retrospective by changing “‘the legal consequences of acts completed

before its effective date, and “[t]he completed ‘acts’ in a probation revocation case are those that

make up the underlying offense.” Id. at 395 (quoting Miller v. Florida, 482 U.S. 423, 430 (1987)).

The court then held that the statutory change to the due diligence defense in Article 42.12, sections

21(e) and 24 did not violate the ex post facto clause, reasoning:

                 The prohibition against ex post facto laws does “not give a defendant a right
         to be tried, in all respects, by the law in force when the crime charged was
         committed.” Holcomb v. State, 146 S.W.3d 723, 731 (Tex. App.—Austin 2004, no
         pet.) (quoting Gibson v. Mississippi, 162 U.S. 565, 16 S.Ct. 904, 40 L.Ed. 1075
         (1896)). Here, the statutory change to the due diligence defense in probation
         revocations did not change the legal consequences of appellant’s indecency with a
         child offenses at the time he committed them. The change did not alter appellant’s
         guilt for the underlying offenses in any way, nor did it increase his punishment for
         them. It altered eventual proceedings in the case that were not a stage in appellant’s
         criminal prosecution and could not be foreseen at the time of appellant’s acts. See
         Gagnon, 411 U.S. at 782, 93 S.Ct. 1756. By the time of his probation revocation,
         appellant possessed the limited due process rights “of one who is a probationer only
         because he has been convicted of a crime.” Id. at 789, 93 S.Ct. 1756. A change in
         how much evidence the State needed to prove appellant’s commission of a
         probation violation by a preponderance of the evidence did not amount to a change
         of the “legal consequences” of his acts of indecency with a child. See Miller, 482
         U.S. at 430, 107 S.Ct. 2446. Accordingly, we conclude the application of article
         42.12, sections 21(e) and 24 did not amount to a violation of appellant’s rights
         under the Ex Post Facto Clause.

Ramirez, 184 S.W.3d at 395-96. We agree with this analysis and overrule Isidro’s fourth point of

error.

                                            CONCLUSION

         The trial court’s judgment is affirmed.

                                                         Catherine Stone, Chief Justice

DO NOT PUBLISH




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