                                       In The
                                  Court of Appeals
                         Seventh District of Texas at Amarillo

                                          Nos. 07-14-00286-CR
                                               07-14-00287-CR


                            SAMUEL FUENTE ORTEZ, APPELLANT

                                                     V.

                               THE STATE OF TEXAS, APPELLEE

                             On Appeal from the 40th District Court
                                      Ellis County, Texas
            Trial Court Nos. 37,162CR & 38,598CR, Honorable Bob Carroll, Presiding

                                            December 5, 2014

                                  MEMORANDUM OPINION
                      Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.

        Samuel Fuente Ortez, appellant, appeals his convictions for aggravated assault

with a deadly weapon1 and “accident involving personal injury.”2 The prison sentences


        1
          The State alleged, via indictment, that appellant did “then and there intentionally, knowingly, or
recklessly cause bodily injury to Michael Stines by driving his vehicle on the wrong side of the road
causing a head-on collision with the vehicle Michael Stines was riding in, and the defendant did then and
there use or exhibit a deadly weapon, to-wit: a motor vehicle, during the commission of said assault.”
        2
          Regarding the latter offense, the State alleged, via indictment, that appellant did “then and there
intentionally or knowingly drive a vehicle that became involved in an accident resulting in serious bodily
injury to Lynn Stines and the said defendant did thereafter, knowing said accident had occurred,
intentionally or knowingly fail to render to Lynn Stines reasonable assistance when it was then apparent
that Lynn Stines was in need of medical treatment.” The crime is found at sections 550.021 and 550.023
of the Texas Motor Vehicle Code.
levied for each were fifteen and ten years, respectively. Appellant attacks his conviction

for aggravated assault by contending that the evidence was insufficient to prove the use

or exhibition of a deadly weapon during the crime. Regarding his other conviction, he

believes that the punishment assessed was “grossly disproportionate to the crime

charged and to the offender's personal circumstance.” We affirm.

         Background

         After spending a day drinking numerous cans of beer, appellant entered a car

with an acquaintance, began driving down the road, crossed into the lane of on-coming

traffic, and remained there for twenty to thirty seconds until colliding head-on with

another vehicle moving in the opposite direction. The two individuals in the vehicle

struck by appellant (that is, Mr. and Mrs. Stines) were severely injured, could be heard

moaning, and required extensive medical treatment.          The passenger riding with

appellant also suffered injuries, though not to the same extent as the Stines. Despite

his involvement in the collision and presence of three injured people at the accident

scene, appellant exited the car he drove and walked away.

         Appellant does not dispute that he intentionally, knowingly or recklessly caused

others to suffer serious bodily injury.    Nor does he deny leaving the scene of an

accident in which he was involved without rendering aid to or securing help for anyone.

         Issue One—Sufficiency of the Evidence

         As previously mentioned, appellant believes that no evidence appears of record

upon which the fact finder could conclude, beyond reasonable doubt, that he used or

exhibited a deadly weapon when assaulting Mr. Stines with a car. We overrule the

issue.



                                             2
       The pertinent standard of review is well known and needs no discussion. It is

enough to simply refer the litigants to Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct.

2781, 61 L.Ed.2d 560 (1979) and Brooks v. State, 323 S.W.3d 893, 899 (Tex. Crim.

App. 2010) for its discussion.

       Next, section 22.01 of the Texas Penal Code states that a person commits

assault if he "intentionally, knowingly, or recklessly causes bodily injury to another."

TEX. PENAL CODE ANN. § 22.01(a)(1) (West Supp. 2014). One commits aggravated

assault by intentionally, knowingly, or recklessly causing bodily injury to another and

"uses or exhibits a deadly weapon during the commission of the assault."           Id. §

22.02(a)(2). As can be seen, a distinguishing feature between the two crimes is the use

or exhibition of a deadly weapon. Statute defines the latter as "anything that in the

manner of its use or intended use is capable of causing death or serious bodily injury."

Id. § 1.07(a)(17)(B); Gordon v. State, 173 S.W.3d 870, 873 (Tex. App.—Fort Worth

2005, no pet.); Dotson v. State, 146 S.W.3d 285, 299 (Tex. App.—Fort Worth 2004,

pet. ref'd). That a motor vehicle or car can be a deadly weapon is beyond dispute. See

e.g., Tyra v. State, 897 S.W.2d 796, 798 (Tex. Crim. App. 1995) (wherein a motor

vehicle was found to constitute a deadly weapon). And, for a car to be such, the driver

need not use or exhibit it with the intent to achieve a specific purpose. As explained by

our Court of Criminal Appeals in Walker v. State, 897 S.W.2d 812 (Tex. Crim. App.

1995), "it is evident that not all deadly weapons need be used with an intent to achieve

a specific purpose”; so, where the purported deadly weapon is an automobile, the State

may obtain an affirmative finding without having to prove that the accused intended to

use the vehicle as a weapon. Id. at 814.



                                            3
       Here, an officer testified that motor vehicles have caused death and that they

could be considered a deadly weapon. Moreover, as depicted in the record at bar,

driving a vehicle into another car may and actually did cause individuals to suffer

serious bodily injury. Given this, the jury had before it some evidence upon which it

could rationally conclude, beyond reasonable doubt, that appellant used or exhibited a

deadly weapon during his assault upon Mr. Stines.

      Issue Two—Disproportionate Sentencing

      Because appellant 1) sought probation upon being found guilty for engaging in

an accident resulting in personal injury and failing to render aid to those he injured, 2)

had not previously been convicted of any felonies, and 3) previously had engaged in a

prior unadjudicated misdemeanor offense for driving while intoxicated in 2009, the ten

year prison sentence levied was grossly disproportionate to the crime and violative of

the United States and Texas Constitutions, or so he believes. The sentence was the

maximum allowed for committing the third degree felony for which he was convicted.

Assuming, arguendo, that the contention was preserved for review even though not

raised below, compare Garza v. State, 435 S.W.3d 258 (Tex. Crim. App. 2014)

(indicating that Garza’s Eighth Amendment claim was not forfeited by his failure to urge

his claim in the trial court) and Curry v. State, 910 S.W.2d 490, 497 (Tex. Crim. App.

1995) (stating that the failure to object that the sentence constitutes cruel and unusual

punishment waives error), we nonetheless overrule it.

      The Eighth Amendment of the United States Constitution prohibits excessive bail

or fines as well as cruel and unusual punishment. See U.S. Const. Amend. VIII. The

provision is applicable to the states through the Fourteenth Amendment; Furman v.

Georgia, 408 U.S. 238, 239, 92 S.Ct. 2726, 2727, 33 L.Ed.2d 346 (1972); Robinson v.

                                            4
California, 370 U.S. 660, 666-67, 82 S.Ct. 1417, 1420-21, 8 L.Ed.2d 758 (1962), and

flows from the basic “‘precept of justice that punishment for crime should be graduated

and proportioned to the offense.’” Atkins v. Virginia, 536 U.S. 304, 311, 122 S.Ct. 2242,

2246, 153 L.Ed.2d 335 (2002), quoting Weems v. United States, 217 U.S. 349, 367, 30

S.Ct. 544, 549, 54 L.Ed. 793 (1910).

       It is undisputed that the sentence imposed by the trial court was within the range

of punishment authorized by the Legislature. Furthermore, Texas courts have

traditionally held that punishment assessed within the range set by the Legislature is not

excessive, cruel, or unusual. E.g., Price v. State, 35 S.W.3d 136, 144 (Tex. App.—

Waco 2000, pet. ref’d); Winchester v. State, 246 S.W.3d 386, 388 (Tex. App.—Amarillo

2008, pet. ref’d); Delacruz v. State, 167 S.W.3d 904, 906 (Tex. App.—Texarkana 2005,

no pet.). Nevertheless, appellant suggests that his claim of gross disproportionality is

independent of that analysis and survives such proof. So too does he cite authority to

support his proposition. See e.g., Puga v. State, 916 S.W.2d 547, 548 (Tex. App.—San

Antonio 1996, no pet.) (stating that the Eighth Amendment encompasses a narrow

proportionality principle and a state criminal sentence must be proportionate to the

crime for which the defendant has been convicted); see also Winchester v. State, 246

S.W.3d at 388-89 (stating that Texas courts recognize that a prohibition against grossly

disproportionate sentences survives under the federal constitution apart from any

consideration whether the punishment assessed is within the statute's range).            His

authority further states the proportionality analysis is guided by objective criteria such as

the gravity of the offense, the harshness of the penalty, the sentences imposed on other

criminals in the same jurisdiction, and the sentences imposed for the commission of the

same crime in other jurisdictions. Puga v. State, 916 S.W.2d at 548-49, quoting Solem

                                             5
v. Helm, 463 U.S. 277, 290, 103 S.Ct. 3001, 3009, 77 L.Ed.2d 637 (1983); see

Winchester v. State, 246 S.W.3d at 389 (stating that a court first compares the gravity of

the offense to the severity of the sentence and only if the court infers the sentence is

grossly disproportionate to the offense should the court then consider the remaining

factors in the Solem test). With this in mind we turn to the record before us.

       As previously mentioned, the sentence fell within the range of punishment

mandated by statute; consequently, the people of Texas (as reflected through the vote

of the Legislature) considered the punishment appropriate. Furthermore, appellant did

not simply involve himself in simple negligence. Again, he does not deny intentionally,

knowingly or recklessly causing serious bodily injury to those victimized by his driving.

That he had ingested numerous alcoholic beverages before entering his car and that

this was not the first time he engaged in driving after drinking alcoholic beverages is

also illustrated by the record. Nor can we ignore the evidence of his driving in the

wrong lane for almost half a minute; that hardly depicts a momentary lapse in judgment

or attention. And, most importantly, while his victims could be heard moaning from their

injuries, appellant just walked away. Finally, he cites us to no evidence describing the

measure of punishment levied in like cases.

       Simply because appellant may have qualified for probation and not previously

been convicted of a felony does not mean the ten year sentence levied under the

circumstances before us was grossly disproportionate or offensive to either the Texas or

United States Constitution.      To use the vernacular proffered by appellant, the

“punishment fit both the crime and the offender,” or so a rational fact finder concluded,

and we cannot hold otherwise under the law or record.



                                            6
      Accordingly, we affirm the judgments of the trial court.




                                                                 Brian Quinn
                                                                 Chief Justice


Do not publish.




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