                                   COURT OF APPEALS
                                EIGHTH DISTRICT OF TEXAS
                                     EL PASO, TEXAS


                                                §
 RICHARD CHARCAS,                                               No. 08-07-00034-CR
                                                §
                  Appellant,                                      Appeal from the
                                                §
 V.                                                             243rd District Court
                                                §
 THE STATE OF TEXAS,                                         of El Paso County, Texas
                                                §
                  Appellee.                                    (TC# 2006ODO1901)
                                                §

                                                §

                                         OPINION

       Richard Charcas appeals his conviction for harassment by person in correctional facility

or detention. The jury sentenced him to 2 years’ imprisonment in the institutional division of the

Texas Department of Criminal Justice. In his sole issue raised for our review, Appellant argues

the sentence imposed by the jury constituted cruel and unusual punishment, in violation of the

Eighth Amendment of the United States Constitution. We affirm.

       On January 20, 2006, Officer Joel Padilla testified that he was working as a detention

officer at the El Paso County Jail Annex in east El Paso. He was assigned to “pod 800” where

his duties included security and monitoring the inmate population. At approximately 3 a.m.,

Officer Padilla did a “physical check” of the inmates in the cells of pod 800. When he passed

cell 804 alpha, he saw Appellant lying on his cell bed. Appellant was the only inmate in the cell.

       When Officer Padilla completed the check, he turned to leave the cell block and passed

Appellant’s cell a second time. As he passed, the officer heard what sounded, “like, when
somebody is about to -- the sound that somebody makes when they’re ready to spit.” When he

turned to see where the sound came from, he saw Appellant directly on the other side of the cell

door. Appellant spit on him. Although some of the fluid was blocked by the door, some made

contact with Officer Padilla’s face through an opening. Officer Padilla immediately cleaned his

face with an alcohol wipe. He testified that through his training, he was aware of a significant

risk of disease transmission through contact with an inmate’s bodily fluids, and required multiple

blood tests and other medical examinations as a result of the incident. Officer Padilla made a

record of the incident and reported it to his supervisor.

       Appellant was charged with “harassment by person in certain correctional facilities,” a

third degree felony. See TEX .PENAL CODE ANN . § 22.11 (Vernon Supp. 2006). The jury

returned a guilty verdict and sentenced Appellant to two years’ imprisonment. Appellant raises a

single issue for our review. He argues that his sentence constitutes a violation of the

constitutional prohibition against cruel and unusual punishment.

       A person commits the offense of harassment by a person in a correctional facility:

       (a)     [I]f, with the intent to assault, harass, or alarm, the person:

               (1)     while imprisoned or confined in a correctional or detention facility,
                       causes another person to contact the blood, seminal fluid, vaginal
                       fluid, saliva, urine, or feces of the actor, any other person, or an
                       animal . . . .

TEX .PENAL CODE ANN . § 22.11(a)(1).

       Because the offense is a third degree felony, a person convicted under Section 22.11(a)

can be sentenced to between two and ten years’ imprisonment and fined up to $10,000. See

TEX .PENAL CODE ANN . § 12.34 (Vernon 2003); TEX .PENAL CODE ANN . § 22.11(b). Appellant



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does not dispute that his sentence falls within the range allowable by statute. Generally, a

punishment assessed within the statutory range is not cruel or unusual. Davila v. State, 930

S.W.2d 641, 654 (Tex.App.--El Paso 1996, pet. ref’d); Belton v. State, 900 S.W.2d 886, 899

(Tex.App.--El Paso 1995, pet. ref’d); Lackey v. State, 881 S.W.2d 418, 420 (Tex.App.--Dallas

1994, pet. ref’d). However, it is possible for a sentence within the statutory range to nonetheless

run afoul of the Eighth Amendment if it is disproportionate to the crime. See Solem v. Helm, 463

U.S. 277, 290, 103 S.Ct. 3001, 3009, 77 L.Ed.2d 637 (1983); Mullins v. State, 208 S.W.3d 469,

470 (Tex.App.--Texarkana 2006, no pet.); Diaz-Galvan v. State, 942 S.W.2d 185, 186

(Tex.App.--Houston [1st Dist.] 1997, pet. ref’d).

       First, the reviewing court must concluded that the punishment is “grossly

disproportionate” to the crime. Harmelin v. Michigan, 501 U.S. 957, 1001, 111 S.Ct. 2680,

2705, 115 L.Ed.2d 836 (1991). Punishment is grossly disproportionate to the crime only when

an objective comparison of the gravity of the offense against the severity of the sentence reveals

the sentence to be extreme. Harmelin, 501 U.S. at 1005, 111 S.Ct. at 2707. Only after the

punishment has been held to be “grossly disproportionate,” will the court further evaluate the

sentence and consider: (1) the sentences imposed in other crimes in the same jurisdiction; and

(2) the sentences imposed for commission of the same crime in other jurisdictions. See Mullins,

208 S.W.3d at 470; Dunn v. State, 997 S.W.2d 885, 892 (Tex.App.--Waco 1999, pet. ref’d);

Lackey, 881 S.W.2d at 420-21.

       Appellant’s sentence is the very lowest within the range the Legislature has determined

appropriate for this crime. There is no evidence in the record before us from which we could

conclude that the punishment is “grossly disproportionate” in accordance with the objective


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standard described above. As the State points out, there is a legitimate need to deter incarcerated

individuals from threatening the health and safety of detention officers and other public servants

with whom they come in contact. Because Appellant has failed to show his sentence was

“grossly disproportionate” to the crime for which he was convicted, there is no need for this

Court to address the remaining Eighth Amendment factors. See Mullins, 208 S.W.3d at 470-71.

Therefore, we overrule Appellant’s issue and affirm the conviction and sentence.



January 15, 2009
                                             DAVID WELLINGTON CHEW, Chief Justice

Before Chew, C.J., McClurr, and Carr, JJ.
Carr, J., Not Participating

(Do Not Publish)




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