                         NUMBER 13-14-00128-CR

                           COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                     CORPUS CHRISTI - EDINBURG


RICHARD LEE MAZA,                                                       Appellant,

                                         v.

THE STATE OF TEXAS,                                                     Appellee.


                   On appeal from the 36th District Court
                      of San Patricio County, Texas.


                         MEMORANDUM OPINION

             Before Justices Rodriguez, Garza, and Longoria
              Memorandum Opinion by Justice Rodriguez
      Appellant Richard Lee Maza challenges his conviction for aggravated sexual

assault of a child, a first-degree felony. See TEX. PENAL CODE ANN. §§ 12.32, 22.021

(West, Westlaw through 2013 3d C.S.). By two issues, which we have renumbered,

Maza contends: (1) the punishment in this case is cruel and unusual; and (2) the trial
court abused its discretion when it assessed attorney’s fees against him. We affirm as

modified.

                                         I.      BACKGROUND1

        Maza was indicted on two counts of child molestation.                      Pursuant to a plea

agreement, Maza pleaded guilty to aggravated sexual assault of a child, and the State

abandoned an indecency with a child charge. On August 27, 2007, the trial court placed

Maza on deferred-adjudication community supervision for seven years and assessed a

$1000.00 fine. The State filed a motion to revoke Maza’s community supervision on

September 20, 2013. At the revocation hearing, after Maza pleaded true to all of the

alleged violations, the trial court found all allegations to be true, adjudicated Maza’s guilt,

revoked his community supervision, and assessed punishment at confinement for thirty-

five years in the Institutional Division of the Texas Department of Criminal Justice. See

id. § 12.32(a) (“An individual adjudged guilty of a felony of the first degree shall be

punished by imprisonment in the Texas Department of Criminal Justice for life or for any

term of not more than 99 years or less than 5 years.”). The trial court also assessed

attorney’s fees of $1600.00 against Maza. This appeal followed.

                                II. CRUEL AND UNUSUAL PUNISHMENT

        By his first issue, Maza contends “the punishment in this case violates the Eighth

Amendment of the United States’ Constitution’s prohibition for cruel and unusual

punishment.” See U.S. CONST. amends. VIII, XIV. The State contends, among other

things, that Maza waived this issue because he did not raise a proper objection in the trial


        1 As this is a memorandum opinion and the parties are familiar with the facts and all issues of law

presented by this case are well settled, we will not recite the facts or the law here except as necessary to
advise the parties of the Court's decision and the basic reasons for it. See TEX. R. APP. P. 47.4.
                                                     2
court. We agree with the State.

       The Eighth Amendment to the United States Constitution provides that “[e]xcessive

bail shall not be required, nor excessive fines, nor cruel and unusual punishment inflicted.”

Id. amend. VIII. This right can be waived if a defendant fails to object to his sentence on

this basis at the trial court. Smith v. State, 721 S.W.2d 844, 855 (Tex. Crim. App. 1986)

(en banc); Noland v. State, 264 S.W.3d 144, 151–52 (Tex. App.—Houston [1st Dist.]

2007, pet. ref'd); see TEX. R. APP. P. 33.1(a)(1).           To preserve a complaint of

disproportionate sentencing, the criminal defendant must make a timely, specific

objection to the trial court or raise the issue in a motion for new trial. Rhoades v. State,

934 S.W.2d 113, 120 (Tex. Crim. App. 1996) (en banc); Noland, 264 S.W.3d at 151–52;

Trevino v. State, 174 S.W.3d 925, 927–28 (Tex. App.—Corpus Christi 2005, pet. ref'd);

see TEX. R. APP. P. 33.1(a). Here, Maza did not object when the trial court pronounced

his sentence and did not raise the issue in a motion for new trial or any other post-trial

motion.

       Nonetheless, Maza urges this Court “to allow an Eighth Amendment [c]laim to be

raised for the first time on appeal despite lack of objection at trial.” He argues that “[t]he

novel constitutional claim being raised in this appeal is that an appellant be allowed to

raise a claim under the Eighth Amendment and Article 1 Section 13 for the first time on

appeal similar to a sufficiency of the evidence argument.” See, e.g., Rankin v. State, 46

S.W.3d 899, 901 (Tex. Crim. App. 2001) (“A claim regarding sufficiency of the evidence

need not be preserved for review at the trial level and is not waived by the failure to do

so.”). Maza relies on Reed v. Ross, which describes a novel constitutional claim as being

one “so novel that its legal basis [was] not reasonably available to counsel.” 468 U.S. 1,
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15–16 (1984). But Maza has not presented any legal basis that was “not reasonably

available to counsel” such that he had cause for failing to object at his sentencing, see

id., and we find none.   We do not consider this issue novel.

       The court of criminal appeals has concluded that the Eighth Amendment’s

prohibition of cruel and unusual punishment can be waived if an objection is not made on

that basis in the trial court. See, e.g., Rhoades, 934 S.W.3d at 120; Smith, 721 S.W.2d

at 855.     Maza had the benefit of these decisions, and many others, addressing

preservation of his constitutional argument. And, substantively, “[t]he decision of what

particular punishment to assess within the statutorily prescribed range for a given offense

is a normative, discretionary function.” Barrow v. State, 207 S.W.3d 377, 379–81 (Tex.

Crim. App. 2006). A sentence within the legislatively prescribed range “is not subject to

a sufficiency of the evidence review on appeal,” which is contrary to what Maza appears

to be arguing. Jarvis v. State, 315 S.W.3d 158, 162 (Tex. App.—Beaumont 2010, no

pet.) (citing Barrow, 207 S.W.3d at 381; Garcia v. State, 166 Tex. Crim. 482, 316 S.W.2d

734, 735 (1958) (“[I]f the punishment is within that prescribed by the statute it is beyond

the province of this Court to pass on the question as to whether the evidence is sufficient

to support a punishment greater than the minimum.”)).

       Maza also asserts that we should review this issue because courts have

“recognized in the past that the Eighth Amendment violations may be raised for the first

time on appeal.” In support of this argument, Maza relies on Garza v. State and Ex parte

Maxwell.    See Garza, 435 S.W.3d 258, 263 (Tex. Crim. App. 2014); Maxwell, 424

S.W.3d 66, 75 (Tex. Crim. App. 2014).       But this authority does not support Maza’s

position.
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        In Garza, the Texas Court of Criminal Appeals set out the following:

        Garza contested the imposition of his life-without-parole sentence arguing
        that, because he was a juvenile, the sentence violated his Eighth
        Amendment rights as defined by the United States Supreme Court's
        decision in Miller v. Alabama.[2] The Fourth Court of Appeals refused to
        review his claim and held that, by failing to lodge an objection in the trial
        court, Garza has forfeited this claim on appeal. We reverse the court of
        appeals' decision because it conflicts with this Court's subsequently
        delivered opinion in Ex parte Maxwell.

Garza, 435 S.W.3d at 259.            And in Maxwell, “the majority granted Maxwell habeas

corpus relief by vacating his life-without-parole sentence [for a crime he committed as a

juvenile] and remanding the case for further sentencing proceedings permitting the

factfinder to determine whether Maxwell's sentence should be assessed at life with or

without parole.” Id. at 261 (citing Maxwell, 424 S.W.3d at 76). “[B]y reaching the merits

of Maxwell's claim [that was not raised in the trial court], the Maxwell majority held,

perforce, that Maxwell's Miller claim was not subject to procedural default.” Id. at 262

(interpreting its Maxwell holding that applied the Miller rule retroactively).

        The cases relied on by Maza address “procedural default” by juveniles sentenced

to life without parole in violation of their Eighth Amendment rights as defined by Miller.

They do not address an adult offender challenging the constitutionality of a sentence that

is within the statutory range of punishment. Therefore, Miller and Maxwell do not support

Maza's contention that he may assert his constitutional claim for the first time on appeal.

        We are not persuaded by Maza’s arguments or his authority. Our analysis must

follow the precedent of the Texas Court of Criminal Appeals and this Court.                            See


         2
           In Miller v. Alabama, “the Supreme Court held that a mandatory ‘life without parole’ sentence for
a defendant who was under the age of 18 at the time of his crime violates the Eighth Amendment’s
prohibition on cruel and unusual punishment.” Ex parte Maxwell, 424 S.W.3d 66, 67 (Tex. Crim. App.
2014) (citing Miller, ___ U.S. ___, 132 S.Ct. 2455, 2460, 2464 (2012)).
                                                     5
Resendez v. State, 160 S.W.3d 181, 187 (Tex. App.—Corpus Christi 2005, no pet.)

(“Stare decisis dictates that we adhere to precedent and not disturb a settled principle of

law except upon the most urgent of reasons.”); see also State v. DeLay, 208 S.W.3d 603,

607 (Tex. App.—Austin 2006) (“As an intermediate appellate court, we lack the authority

to overrule an opinion of the court of criminal appeals.”), aff'd sub nom. State v.

Colyandro, 233 S.W.3d 870 (Tex. Crim. App. 2007). Because Maza did not object in the

trial court, he has not preserved this issue for our review. See Rhoades, 934 S.W.2d at

120; Noland, 284 S.W.3d 151–52; Trevino, 174 S.W.3d at 927–28; see also TEX. R. APP.

P. 33.1(a). We overrule Maza’s first issue.

                III.   ASSESSMENT OF ATTORNEY’S FEES AGAINST MAZA

       Maza argues, by his second issue, that the trial court abused its discretion when it

assessed attorney’s fees against him, an indigent offender. Although the record does

not reflect an express finding of Maza’s indigence, the trial court appointed counsel to

represent him. See TEX. CODE CRIM. PROC. ANN. art. 1.051 (West, Westlaw through 2013

3d C.S.).

       Article 26.05(g) of the code of criminal procedure provides trial courts with

discretionary authority to order reimbursement of appointed attorney’s fees when the

“defendant has financial resources that enable him to offset in part or in whole the costs

of the legal services provided[.]” See id. art. 26.05(g) (West, Westlaw through 2013 3d

C.S.). Before doing so, however, the trial court must hear evidence and determine

whether a material change in the defendant’s financial circumstances has occurred since

his initial declaration of indigence. See Mayer v. State, 309 S.W.3d 552, 556 (Tex. Crim.

App. 2010). The trial court made no such determination in this case. See id.
                                              6
       In the absence of evidence demonstrating Maza’s financial resources to offset the

costs of legal services, the State concedes, and we agree, that the trial court erred in

assessing attorney’s fees against Maza, who presumably remained indigent. See id.

We sustain Maza’s second issue.

                                   IV. CONCLUSION

       We modify the trial court's judgment to delete the $1600.00 in attorney's fees

assessed against Maza. We affirm the trial court's judgment as modified. See TEX. R.

APP. P. 43.2(b).

                                                             NELDA V. RODRIGUEZ
                                                             Justice

Do not publish.
TEX. R. APP. P. 47.2(b).

Delivered and filed the
11th day of June, 2015.




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