                                   NO. 12-18-00274-CR

                          IN THE COURT OF APPEALS

               TWELFTH COURT OF APPEALS DISTRICT

                                     TYLER, TEXAS

 LEONARD INTELISANO,                               §      APPEAL FROM THE 349TH
 APPELLANT

 V.                                                §      JUDICIAL DISTRICT COURT

 THE STATE OF TEXAS,
 APPELLEE                                          §      HOUSTON COUNTY, TEXAS

                                  MEMORANDUM OPINION
       Leonard Intelisano appeals his conviction for murder. In two issues, Appellant argues his
sentence is grossly disproportionate and the trial court erred in admitting hearsay. We affirm.


                                          BACKGROUND
       On January 13, 2016, officers with the Houston County Sheriff’s Department responded to
a call of a possible shooting. When officers arrived on the scene, they found Frank Thomas
covered in blood and lying on the pavement next to his truck. Thomas had wounds to his left torso
and arm that appeared to be caused by buckshot, and he was bleeding profusely. While speaking
with the responding officers, Thomas identified Appellant as his assailant. It was later learned that
Thomas had been shot in his orbital socket and a bullet had lodged in the back of his skull. Thomas
also had a bullet in his back. The next day, Thomas was interviewed by a Texas Ranger in the
hospital. During that discussion, Thomas again identified Appellant as the man who shot him.
Thomas died four days later from his injuries.
       Appellant was charged by indictment with murder. Appellant pleaded “not guilty” and the
matter proceeded to a jury trial. Following evidence and argument, the jury found Appellant
“guilty” as charged and assessed punishment at sixty-one years imprisonment and a $10,000 fine.
The trial court sentenced Appellant accordingly, and this appeal followed.
                               CRUEL AND UNUSUAL PUNISHMENT
       In his first issue, Appellant argues that the sixty-one-year sentence imposed by the trial
court is grossly disproportionate to the crime committed and amounts to cruel and unusual
punishment.     “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.”
Kim v. State, 283 S.W.3d 473, 475 (Tex. App.—Fort Worth 2009, pet. ref’d); see also Rhoades v.
State, 934 S.W.2d 113, 120 (Tex. Crim. App. 1996) (waiver of complaint of cruel and unusual
punishment under the Texas Constitution because defendant presented his argument for first time
on appeal); Curry v. State, 910 S.W.2d 490, 497 (Tex. Crim. App. 1995) (defendant waived
complaint that statute violated his rights under the United States Constitution when raised for first
time on appeal); Mays v. State, 285 S.W.3d 884, 889 (Tex. Crim. App. 2009) (“Preservation of
error is a systemic requirement that a first-level appellate court should ordinarily review on its own
motion[;] ... it [is] incumbent upon the [c]ourt itself to take up error preservation as a threshold
issue.”); TEX. R. APP. P. 33.1. A review of the record shows that Appellant lodged no objection to
the constitutionality of his sentence at the trial court level, and has, therefore, failed to preserve
error for appellate review. See Kim, 283 S.W.3d at 475; see also Rhoades, 934 S.W.2d at 120;
Curry, 910 S.W.2d at 497; Mays, 285 S.W.3d at 889; TEX. R. APP. P. 33.1.
       However, despite Appellant’s failure to preserve error, we conclude his sentence does not
constitute cruel and unusual punishment. The Eighth Amendment to the Constitution of the United
States provides that “[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel
and unusual punishments inflicted.” U.S. CONST. amend. VIII. This provision was made applicable
to the states by the Due Process Clause of the Fourteenth Amendment. Meadoux v. State, 325
S.W.3d 189, 193 (Tex. Crim. App. 2010) (citing Robinson v. California, 370 U.S. 660, 666–67,
82 S. Ct. 1417, 1420–21, 8 L. Ed. 2d 758 (1962)). The legislature is vested with the power to
define crimes and prescribe penalties. See Davis v. State, 905 S.W.2d 655, 664 (Tex. App.—
Texarkana 1995, pet. ref’d); see also Simmons v. State, 944 S.W.2d 11, 15 (Tex. App.—Tyler
1996, pet. ref’d). Courts have repeatedly held that punishment which falls within the limits
prescribed by a valid statute is not excessive, cruel, or unusual. See Harris v. State, 656 S.W.2d
481, 486 (Tex. Crim. App. 1983); Jordan v. State, 495 S.W.2d 949, 952 (Tex. Crim. App. 1973);
Davis, 905 S.W.2d at 664.



                                                  2
       In this case, Appellant was convicted of murder, a first-degree felony, the punishment
range for which is between five and ninety-nine years, or life, imprisonment. See TEX. PENAL
CODE ANN. §§ 12.32 (West 2019), 19.02(c) (West 2019). Thus, the sentence imposed by the trial
court falls within the range set forth by the legislature. Therefore, the punishment is not prohibited
as cruel, unusual, or excessive per se. See Harris, 656 S.W.2d at 486; Jordan, 495 S.W.2d at 952;
Davis, 905 S.W.2d at 664.
       Nevertheless, Appellant urges the court to perform the three-part test originally set forth in
Solem v. Helm, 463 U.S. 277, 103 S. Ct. 3001, 77 L. Ed. 2d 637 (1983). Under this test, the
proportionality of a sentence is evaluated by considering (1) the gravity of the offense and the
harshness of the penalty, (2) the sentences imposed on other criminals in the same jurisdiction, and
(3) the sentences imposed for commission of the same crime in other jurisdictions. Id., 463 U.S.
at 292, 103 S. Ct. at 3011. The application of the Solem test has been modified by Texas courts
and the Fifth Circuit Court of Appeals in light of the Supreme Court’s decision in Harmelin v.
Michigan, 501 U.S. 957, 111 S. Ct. 2680, 115 L. Ed. 2d 836 (1991) to require a threshold
determination that the sentence is grossly disproportionate to the crime before addressing the
remaining elements. See, e.g., McGruder v. Puckett, 954 F.2d 313, 316 (5th Cir. 1992), cert.
denied, 506 U.S. 849, 113 S. Ct. 146, 121 L. Ed. 2d 98 (1992); see also Jackson v. State, 989
S.W.2d 842, 845–46 (Tex. App.—Texarkana 1999, no pet.).
       We are guided by the holding in Rummel v. Estelle in making the threshold determination
of whether Appellant’s sentence is grossly disproportionate to his crime. 445 U.S. 263, 100 S. Ct.
1133, 63 L. Ed. 2d 382 (1980). In Rummel, the Supreme Court considered the proportionality
claim of an appellant who received a mandatory life sentence under a prior version of the Texas
habitual offender statute for a conviction of obtaining $120.75 by false pretenses. See id., 445 U.S.
at 266, 100 S. Ct. at 1135. In that case, the appellant received a life sentence because he had two
prior felony convictions—one for fraudulent use of a credit card to obtain $80 worth of goods or
services and the other for passing a forged check in the amount of $28.36. Id., 445 U.S. at 265–
66, 100 S. Ct. at 1134–35. After recognizing the legislative prerogative to classify offenses as
felonies and, further, considering the purpose of the habitual offender statute, the court determined
that the appellant’s mandatory life sentence did not constitute cruel and unusual punishment. Id.,
445 U.S. at 284–85, 100 S. Ct. at 1144–45.




                                                  3
       In this case, the offense committed by Appellant—murder—is considerably more serious
than the combination of offenses committed by the appellant in Rummel, while Appellant’s sixty-
one-year sentence is less severe than the life sentence upheld by the Supreme Court in Rummell.
Thus, it is reasonable to conclude that if the sentence in Rummell is not constitutionally
disproportionate, neither is the sentence assessed against Appellant in this case. In his brief,
Appellant makes a conclusory statement that his sixty-one-year sentence is grossly
disproportionate, stating that “other much more serious crimes the defendant was convicted of
resulted in significantly less harsh sentences than Appellant received.” However, he cites to no
authority to support this contention. See TEX. R. APP. P. 38.1(i) (“[t]he brief must contain a clear
and concise argument for the contentions made, with appropriate citations to the authorities...”).
Because we do not conclude that Appellant’s sentence is disproportionate to his crime, we need
not apply the remaining elements of the Solem test. Appellant’s first issue is overruled.


                     HEARSAY AND THE DYING DECLARATION EXCEPTION
       In his second issue, Appellant argues that the trial court abused its discretion in permitting
the officers to testify about Thomas’s statements regarding the identity of his assailant because his
statements constitute inadmissible hearsay.
Standard of Review and Governing Law
       We review a trial court’s decision to admit evidence under an abuse of discretion standard.
Apolinar v. State, 155 S.W.3d 184, 186 (Tex. Crim. App. 2005). A trial court abuses its discretion
only when the decision lies “outside the zone of reasonable disagreement.” Id.
       Hearsay statements generally are not admissible unless the statement falls within a
recognized exception to the hearsay rule. Mick v. State, 256 S.W.3d 828, 831 (Tex. App.–
Texarkana 2008, no pet.). If the declarant is unavailable as a witness, his hearsay statement is
admissible if it constitutes a dying declaration. See TEX. R. EVID. 804(b)(2). Before a statement is
admissible as a dying declaration, it must meet the following three requirements: (1) the declarant
must be unavailable; (2) the declarant, at the time he makes the statement, must believe his death
is imminent; and (3) the statement must concern the cause or circumstances of the potential
impending death. Scott v. State, 894 S.W.2d 810, 811 (Tex. App.–Tyler 1994, pet. ref’d); see TEX.
R. EVID. 804(b)(2); Williams v. State, 800 S.W.2d 364, 368 (Tex. App.–Fort Worth 1990), pet.
ref’d, 805 S.W.2d 474 (Tex. Crim. App. 1991).



                                                 4
         Contemplation of death may be inferred from surrounding circumstances; it is not
necessary that the declarant specifically express his awareness of impending death. Scott, 894
S.W.2d at 812 (citing Thomas v. State, 699 S.W.2d 845, 853 (Tex. Crim. App. 1985); Hayes v.
State, 740 S.W.2d 887, 889 (Tex. App.–Dallas 1987, no pet.)). Circumstances to be considered in
evaluating a potential dying declaration include (1) the express language of the declarant, (2) the
nature of the injury, (3) any medical opinion provided to the declarant, and (4) the conduct of the
declarant. Scott, 894 S.W.2d at 812. Additionally, the fact that the statement was made in response
to a question does not render it inadmissible. 1 Id.
         Further still, the length of time the declarant lives after making the declaration is
immaterial. See Charles v. State, 955 S.W.2d 400, 404 (Tex. App.–San Antonio 1997, no pet.);
see also Herrera v. State, 682 S.W.2d 313, 320 (Tex. Crim. App. 1984); Franks v. State, 625
S.W.2d 820, 822 (Tex. App.–Fort Worth 1981, pet. ref’d) (holding that fact declarant lived for
eight weeks after making statement was immaterial to whether statement was dying declaration).
The focus of the rule is on the declarant’s state of mind when the statement is made, not on the
eventual outcome of the patient’s injuries. Charles, 955 S.W.2d at 404.
         If hearsay was erroneously admitted, Appellant must show that the error was either of
constitutional magnitude or affected a substantial right. See TEX. R. APP. P. 44.2(a), (b). Admission
of a hearsay statement implicates both constitutional and non-constitutional error. See Guidry v.
State, 9 S.W.3d 133, 149 (Tex. Crim. App. 1999) (“Admission of hearsay evidence against a
criminal defendant implicates the Confrontation Clause of the Sixth Amendment because the
defendant is not afforded the opportunity to confront the out-of-court declarant.”); see also
Couchman v. State, 3 S.W.3d 155, 160 (Tex. App.—Fort Worth 1999, pet. ref’d) (stating that
court of criminal appeals treats violation of rules of evidence that results in erroneous admission
of evidence as non-constitutional error). The harm analysis under Rule 44.2(a) imposes a more
stringent standard than Rule 44.2(b). Guidry, 9 S.W.3d at 151 n.14.
         Under Rule 44.2(a), if the appellate record in a criminal case reveals constitutional error
subject to harmless-error review, we must reverse a judgment of conviction or punishment unless
we determine beyond a reasonable doubt the error did not contribute to the conviction or
punishment. TEX. R. APP. P. 44.2(a); Wesbrook v. State, 29 S.W.3d 103, 119 (Tex. Crim. App.


         1
           This principle is not necessarily applicable where the declarant merely responds to leading questions. Scott
v. State, 894 S.W.2d 810, 812 n.1 (Tex. App.–Tyler 1994, pet. ref’d).


                                                          5
2000); Aguirre–Mata v. State, 992 S.W.2d 495, 498 (Tex. Crim. App. 1999). In making a
harmless-error determination under Rule 44.2(a), we do not focus on the weight of other evidence
of guilt. Rather, we determine whether the error might have prejudiced a juror’s decision-making
process. Montgomery v. State, 821 S.W.2d 314, 317 (Tex. App.—Dallas 1991) (en banc), pet.
ref’d, 827 S.W.2d 324 (Tex. Crim. App. 1992) (per curiam) (citing Harris v. State, 790 S.W.2d
568, 587 (Tex. Crim. App. 1989)).
       In performing a harmless-error analysis under Rule 44.2(a), we isolate the effect of the
error and determine how much weight a juror would probably place on the error. Harris, 790
S.W.2d at 587. If the error was of such a magnitude that in reasonable probability it disrupted the
jury’s orderly evaluation of all the evidence, no matter how overwhelming other evidence of guilt
might have been, then the conviction must be reversed. Id. Unless the overwhelming evidence
dissipates the error’s effect on the jury’s function in determining the facts, so that it did not
contribute to the verdict, the error is harmful. Id. We ask if a reasonable probability exists that the
evidence, either alone or in context, moved the jury from a state of nonpersuasion to one of
persuasion beyond a reasonable doubt. Wesbrook, 29 S.W.3d at 119; Cardenas v. State, 971
S.W.2d 645, 651 (Tex. App.—Dallas 1998, pet. ref’d). If so, the error is harmful. Wesbrook, 29
S.W.3d at 119.
       Whether the evidence is sufficient to convict without the inadmissible evidence is not the
sole determinant in a Rule 44.2(a) harm analysis. See Cardenas, 971 S.W.2d at 651. Rather, we
assess whether a reasonable probability exists that the erroneously admitted evidence contributed
to the jury’s verdict. Id. Thus, we must calculate as closely as possible the probable impact of the
error on the jury in the context of the other evidence introduced at trial. Harris, 790 S.W.2d at 827.
In making this determination, Harris directs us to examine six factors: (1) the source of the error;
(2) the nature of the error; (3) whether and to what extent the State emphasized the error; (4) any
collateral implications of the error; (5) the weight a juror would probably place on the error; and
(6) whether declaring the error harmless would encourage the State to repeat it with impunity. Id.;
Mosley v. State, 960 S.W.2d 200, 204–05 (Tex. App.—Corpus Christi 1997, no pet.). We are
“obligated to examine the entire record in a neutral, impartial and even-handed manner and not ‘in
the light most favorable to the prosecution.’” Harris, 790 S.W.2d at 587.




                                                  6
Analysis
       Appellant argues in his brief that “the dying declarations statement should not have been
permitted to be introduced.” However, he fails to direct us to the challenged statement in the
record. He states that “the statements that were made to the officers were admitted as dying
declarations” without naming which officer’s testimony he is referencing. However, he argues
that the victim “was not incoherent when he was approached by officers” and that “the officer at
the scene” did not testify to facts that would support the State’s argument that the victim believed
death was imminent when he made the statements. Based on this information and our review of
the record, we construe Appellant’s argument as a challenge to the testimony of Michael Molnes
and Justin Killough.
       Molnes testified that he was a detective with the Houston County Sheriff’s Department in
January 2016, and he was dispatched to assist on a call of a possible shooting. He further testified
as follows:


       Q. Was -- and did you recognize Frank Thomas? Did you know him at the time?
       A. No.
       Q. Was he conscious when you saw him laying there on the ground?
       A. Yes, but in pain.
       Q. Were you able to speak with him?
       A. No, I wasn’t but Lieutenant Killough did, and I overheard the conversation that was there.
       Q. And what did you hear Frank Thomas [say] as he lay there on the ground?
       MR. PEMBERTON: Judge, I’m going to object on the grounds that it’s hearsay. It does not qualify
       as a dying declaration. There’s been no showing that he believed his death was imminent, and it
       violates my right to confront the witness against him guaranteed by the Constitution of the United
       States, Sixth Amendment, and the Texas Constitution.
       THE COURT: Sustained. You would have to --
       MS. KASPAR: That’s fine.
       THE COURT: -- show an exception to hearsay.
       MS. KASPAR: That’s fine.
       Q. (By Ms. Kaspar) Let’s go back a little bit more to his condition. What did you see his condition
       to be?
       A. He was laying on his back face up. There was blood spatter in the eyes, on the cheeks, face area.
       Both arms were covered in blood. The shirt was heavily drenched in blood. And the one gentleman
       had a compress on his chest, so I don’t know what the extent of the damage to the chest area was at
       that time.
       Q. At that time were you aware that he had a bullet in his back as well?
       A. No.
       Q. Did you later find that out?
       A. Yes.
       Q. Were you aware that he had a bullet in his brain at the time?
       A. No.
       Q. Did you find that out later?
       A. Yes.
       Q. How easy was it for Frank Thomas to speak to you while he was laying there?




                                                        7
        A. He was in pain when he spoke, but he could – he could answer your questions. He was alert but
        you could tell he was in pain.
        Q. In looking at the wounds, did you believe he may die?
        A. Yes, I did.
        Q. What made you think that?
        A. The heavy loss of blood, the extent of the injury after I looked at it in the ambulance, and looks
        like it was traumatic blood loss, so I don’t know how much more was in his body but I just know
        there was heavy blood loss.
        Q. Then I would ask you again, what did he say?
        MR. PEMBERTON: Judge, we will renew our objection. There was no showing that Mr. Thomas
        believed his death was imminent. It’s hearsay and it violates the rights to confront the witnesses
        against my client.
        THE COURT: Overruled.
        Q. (Ms. Kaspar) You can answer. What did he say?
        A. Lieutenant Killough asked him who shot him. He said: Len, Len shot me. Then he asked: Do you
        know his last name? He said: Yes, it’s Intelisano.


Molnes’s testimony was supported by that of Lieutenant Killough. Killough testified that he is a
lieutenant with the Houston County Sheriff’s Department. Killough also responded to the scene.
He testified, in part, to the following:


        A. I noticed superficial -- what I thought was superficial cuts at the time because of the bullet hole
        and the glass in that area. That’s what I was thinking at the time.
        Q. Was Mr. Thomas conscious when you first arrived?
        A. Yes, he was.
        Q. Were you able to talk to him?
        A. Yes, I was.
        Q. Based on what you saw, did you think Frank Thomas might die?
        A. Yes, I did.
        Q. What made you think that he might?
        A. Well, simply because of the fact that I noticed the gunshot wound to his torso, and at the time
        just looking at his face, and I guess you put my years of experience or knowledge, and just speaking
        to him, the way he was talking and his facial expressions, I believed he was going to die.
        Q. Did he appear to be in a great deal of pain?
        A. Yes, he did.
        Q. Okay. Did he appear that he had lost a lot of blood?
        A. Yes, he did.
        Q. Was he easy to understand when he talked?
        A. Yes, at times and some not, because he was in shock -- I believed he was in shock and traumatized
        by the event.
        Q. And what did he tell you?
        MR. PEMBERTON: Judge, I’m going to object[] on grounds: number one, that it’s hearsay; number
        2 it doesn’t qualify as a dying declaration because there’s [no] showing that Mr. Thomas believed
        his death was imminent, and also that it violates my client’s right to confrontation of witnesses
        against him under the Texas and Federal Constitution.
        THE COURT: Overruled.
        Q. (By Ms. Kaspar) What did he tell you?
        A. He made the statement -- of course I was up there we was exchanging, and I asked him I said,
        “You know who shot you?” What did you -- and he was -- it was -- I noticed before I was up there
        he was already talking to some of the other people that was applying pressure, and -- and he said,
        “Len shot me.”




                                                          8
       Q. Did you know -- did you know who Len was?
       A. No, I did not.
       Q. Did you ask him who Len was?
       A. Yes. I was -- as I constantly asked him, I said, “Well, who shot you? Who shot you?” He said,
       “Len,” and at first I thought he said Len Delasano, and that’s what I first heard it as, Delasano. And
       then as we continued our conversation, it was Intelisano.


       While it appears that Appellant’s challenge encompasses Killough’s and Molnes’s
testimony, Michael Adcock, a Texas Ranger, testified that he interviewed the victim in the
hospital. The audio recording of that interview was admitted, over Appellant’s hearsay objection,
into evidence. During that interview, which was confirmed during Ranger Adcock’s testimony,
Thomas identified Appellant as the man who shot him in a photo lineup. Appellant has not
challenged the admission of the audio recording on appeal. Even if Killough’s and Molnes’s
testimony was improperly admitted, the improper admission of evidence is not reversible when
the same or similar evidence, such as the audio recording, is not challenged. See Cox v. State, No.
14-15-00684-CR, 2017 WL 716606, at *4 (Tex. App.—Houston [14th Dist.] Feb. 23, 2017, pet.
ref’d) (mem. op., not designated for publication).
       Additionally, Appellant’s theory at trial was that he acted in self-defense. The identity of
the person who shot Thomas was not the issue at trial. Appellant made no attempt to claim that
someone else shot Thomas and caused his death. Appellant testified that Thomas blocked the
roadway with his vehicle and threatened him with a baseball bat. Appellant further testified that
he did not “want to kill or cripple” Thomas, but he grabbed a shotgun from behind his seat and
shot Thomas. Therefore, even if the admission of Thomas’s statements to the officers was error,
the statements were not pertinent to the primary issue at trial, and could not have contributed to
the conviction or punishment, thereby making any error harmless. See TEX. R. APP. P. 44.2(a);
Carillo v. State, No. 03-05-00844-CR, 2007 WL 541598, at *6 (Tex. App.—Austin Feb. 23, 2007,
no pet.) (mem. op., not designated for publication). 2 Under these circumstances, Appellant’s
second issue is overruled.


                                                   DISPOSITION
       Having overruled Appellant’s first and second issues, we affirm the trial court’s judgment.




       2
           We also note that in his disproportionate sentence argument, Appellant concedes his guilt.


                                                          9
                                                                GREG NEELEY
                                                                   Justice


Opinion delivered October 31, 2019.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.




                                             (DO NOT PUBLISH)




                                                         10
                                   COURT OF APPEALS

      TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

                                           JUDGMENT

                                          OCTOBER 31, 2019


                                         NO. 12-18-00274-CR


                                     LEONARD INTELISANO,
                                           Appellant
                                              V.
                                     THE STATE OF TEXAS,
                                           Appellee


                                Appeal from the 349th District Court
                         of Houston County, Texas (Tr.Ct.No. 16CR-049)

                       THIS CAUSE came to be heard on the appellate record and briefs filed
herein, and the same being considered, it is the opinion of this court that there was no error in the
judgment.
                       It is therefore ORDERED, ADJUDGED and DECREED that the judgment
of the court below be in all things affirmed, and that this decision be certified to the court below
for observance.
                    Greg Neeley, Justice.
                    Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
