       TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-18-00361-CR


                             Fernando Garcia-Escobar, Appellant

                                                 v.

                                  The State of Texas, Appellee


          FROM THE 403RD DISTRICT COURT OF TRAVIS COUNTY
NO. D-1-DC-17-202029, THE HONORABLE BRENDA KENNEDY, JUDGE PRESIDING


                            MEMORANDUM OPINION


               A jury found appellant Fernando Garcia-Escobar guilty of continuous sexual

abuse of a young child for sexually abusing his stepdaughter, M.H.-M., see Tex. Penal Code

§ 21.02(b), and assessed his punishment at confinement for life in the Texas Department of

Criminal Justice, see id. § 21.02(h). In a single point of error, appellant asserts that his sentence

is cruel and unusual in violation of the Eighth Amendment. Finding that appellant failed to

preserve this claim for appellate review, we affirm the trial court’s judgment of conviction.


                                         BACKGROUND

               The evidence at trial demonstrated that appellant began sexually abusing M.H.-M.

when she was eight or nine years old. The sexual abuse stopped when M.H.-M. was thirteen

years old because her younger brother walked in on appellant having sexual intercourse with

M.H.-M. At trial, M.H.-M. described the various sexual acts that appellant perpetrated against
her over the four- or five-year period, including putting his “private part” inside her “private

part,” putting his mouth on her “vagina,” putting his fingers inside her “vagina,” taking pictures

of her “vagina” with his phone, and making her put her mouth on his penis. She could not recall

how many times the sexual abuse occurred but indicated that “it happened really frequently,”

typically, depending on the sexual act perpetrated, once or twice a week.

               Appellant did not testify at trial, but a video recording of his interview with

police, which occurred after appellant turned himself in the day after his stepson discovered the

sexual abuse, was admitted at trial. In the interview, appellant admitted that he was vaginally

penetrating M.H.-M. with his penis when his stepson walked in and confessed that he had been

having sexual intercourse with M.H.-M. for about four years, although appellant insisted that he

never forced his stepdaughter, never threatened her, and never did anything “against her will.”

               The jury found appellant guilty of continuous sexual abuse of a young child and

assessed a life sentence as appellant’s punishment. Appellant filed a motion for new trial, which

was overruled by operation of law, and this appeal followed.


                                         DISCUSSION

               Under the sentencing scheme for continuous sexual abuse of a young child, a

defendant convicted of that offense is subject to an enhanced first-degree punishment range:

imprisonment for life or for any term of not more than 99 years or less than 25 years. See id.

§ 21.02(h). In addition, an inmate serving a sentence for that offense is not eligible for release

on parole. See Tex. Gov’t Code § 508.145(a). Thus, a defendant convicted of continuous sexual

abuse of a young child who is given a life sentence, as appellant was here, is sentenced to life

without the possibility of parole.


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               In his sole point of error, appellant asserts that a sentence of life without parole

for a non-homicide offense violates the prohibition against cruel and unusual punishment under

the Eighth Amendment to the United States Constitution.            See U.S. Const. amend. VIII

(providing that “cruel and unusual punishments” shall not be inflicted).           After reviewing

the record before us, we conclude that appellant failed to preserve this complaint for

appellate review.

               “[A]ll errors—even constitutional errors—may be forfeited on appeal if an

appellant failed to object at trial.” Garza v. State, 435 S.W.3d 258, 260–61 (Tex. Crim. App.

2014); Fuller v. State, 253 S.W.3d 220, 232 (Tex. Crim. App. 2008).              Generally, Eighth

Amendment issues are forfeited if not raised in the trial court. Garza, 435 S.W.3d at 261; see

Rhoades v. State, 934 S.W.2d 113, 120 (Tex. Crim. App. 1996) (holding that defendant waived

complaint regarding violation of state constitutional right against cruel and unusual punishment

because complaint was raised for first time on appeal); Curry v. State, 910 S.W.2d 490, 497

(Tex. Crim. App. 1995) (holding that defendant waived complaint that punishment was cruel and

unusual under Eighth Amendment when complaint was raised for first time on appeal); see, e.g.,

Lucero v. State, 246 S.W.3d 86, 98 (Tex. Crim. App. 2008) (concluding that defendant did not

raise Eighth Amendment claim in trial court and therefore did not preserve it for

appellate review).

               To preserve a complaint that a sentence constitutes cruel and unusual punishment,

a defendant must make a timely, specific objection to the trial court or raise the issue in a motion

for new trial. Marin v. State, No. 03-16-00731-CR, 2017 WL 5985496, at *1–2 (Tex. App.—

Austin Dec. 1, 2017, no pet.) (mem. op., not designated for publication); see Burt v. State,

396 S.W.3d 574, 577 (Tex. Crim. App. 2013) (holding that sentencing issue is preserved by

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objecting at punishment hearing, when sentence is pronounced, or, in some instances, by raising

issue in motion for new trial) (citing Idowu v. State, 73 S.W.3d 918, 923 (Tex. Crim. App. 2002),

Bitterman v. State, 180 S.W.3d 139, 142–43 (Tex. Crim. App. 2005)); Davidson v. State,

No. 03-13-00708-CR, 2014 WL 3809813, at *1 (Tex. App.—Austin Aug. 1, 2014, no pet.)

(mem. op., not designated for publication) (“It is well established that to preserve a complaint of

cruel and unusual punishment, a defendant must make a timely, specific objection to the trial

court or raise the issue in a motion for new trial.”); see also Tex. R. App. P. 33.1(a) (to preserve

complaint for appellate review, party must have presented specific and timely request, motion, or

objection to trial court).

                In this case, appellant did not assert that his sentence was cruel and unusual in

violation of the Eighth Amendment when the trial court imposed the sentence, in a motion for

new trial, or at any other time in the trial court. Appellant concedes as much in his brief but

argues that his claim challenging the constitutionality of his sentence is exempt from the

preservation-of-error requirement.

                The United States Supreme Court has held that “mandatory life without parole for

those under the age of 18 at the time of their crimes violates the Eighth Amendment’s prohibition

on ‘cruel and unusual punishments.’” Miller v. Alabama, 567 U.S. 460, 465 (2012). The Court

of Criminal Appeals subsequently held that the rule announced in Miller was a new substantive

rule, as opposed to a procedural rule, and therefore applied retroactively. Ex parte Maxwell,

424 S.W.3d 66, 73–76 (Tex. Crim. App. 2014). The Court of Criminal Appeals has also held

that a Miller claim—a claim that the mandatory punishment of life in prison without the

possibility of parole for a juvenile offender violates the Eighth Amendment—is not forfeited by

the failure to raise it at trial. Garza, 435 S.W.3d at 262–63. While affirming that Eighth

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Amendment issues generally are forfeited if not raised in the trial court, the high court

recognized an exception to the preservation-of-error requirement for “substantive status-based or

individualized-sentencing claims under the Eighth Amendment and embraced by Miller.” See id.

at 262. Relying on Garza, appellant contends that his claim is such a claim. We disagree.

                “The heart of a Miller claim is the assertion that the Constitution would be

violated by applying a mandatory sentence of life without parole to the defendant because he

was underage at the time of his offense.” Franklin v. State, — S.W.3d —, No. PD-0787-18,

2019 WL 2814861, at *2 (Tex. Crim. App. July 3, 2019); see Maxwell, 424 S.W.3d at 75 (“But

Miller is driven, first and foremost, by the conclusion that ‘children are constitutionally different

from adults for purposes of sentencing.’” (quoting Miller, 567 U.S. at 471)). Appellant does not

challenge the constitutionality of his sentence based on his age at the time of his offense. Rather,

he urges a “categorical ban” to “all life without parole sentencing for non-homicidal offenses

under the Eighth Amendment.” Thus, he does not assert a substantive status-based or individual-

sentencing claim embraced by Miller and his reliance on Garza to argue that he did not need to

preserve his claim at trial is misplaced. Invoking Garza, and therefore invoking Miller, “does

not cast a magic cloak of unforfeitability over a claim.” Franklin, 2019 WL 2814861, at *2.

               Accordingly, we reject appellant’s contention that his complaint was not subject

to procedural default. See Mendiola v. State, No. 14-15-01095-CR, 2017 WL 888329, at *5–6

(Tex. App.—Houston [14th Dist.] Mar. 2, 2017, pet. ref’d) (mem. op., not designated for

publication) (rejecting complaint based on failure to preserve error in trial court when claim not

embraced by Miller); Maza v. State, No. 13-14-00128-CR, 2015 WL 3637821, at *3 (Tex.

App.—Corpus Christi June 11, 2015, no pet.) (mem. op., not designated for publication)

(concluding that Maxwell and Garza are limited to “‘procedural default’ by juveniles sentenced

                                                 5
to life without parole in violation of their Eighth Amendment rights as defined by Miller” and

thus appellant, “an adult offender challenging the constitutionality of a sentence,” failed to

preserve challenge because he did not raise it at trial); see also Hernandez v. State,

No. 09-16-00388-CR, 2018 WL 4904589, at *18 (Tex. App.—Beaumont Oct. 10, 2018, pet.

ref’d) (mem. op., not designated for publication) (holding that appellant forfeited right to

complain that sentence of life without parole for continuous sexual abuse of young child was

cruel and unusual because he failed to object on that basis when sentenced); Prine v. State,

No. 12-17-00241-CR, 2018 WL 1736796, at *1 (Tex. App.—Tyler Apr. 11, 2018, no pet.)

(mem. op., not designated for publication) (concluding that appellant waived Eighth Amendment

challenge to 99-year sentence without parole for continuous sexual abuse of young child by not

objecting at trial level).

                Preservation of error is a systemic requirement on appeal.       Darcy v. State,

488 S.W.3d 325, 327 (Tex. Crim. App. 2016); Bekendam v. State, 441 S.W.3d 295, 299 (Tex.

Crim. App. 2014). A reviewing court should not address the merits of an issue that has not been

preserved for appeal. Blackshear v. State, 385 S.W.3d 589, 590 (Tex. Crim. App. 2012); Wilson

v. State, 311 S.W.3d 452, 473–74 (Tex. Crim. App. 2010).

                Appellant’s claim is not embraced by Miller; thus, he was required to preserve it

in the trial court. Because he failed to do so, he is not entitled to appellate review of this

complaint. Accordingly, we overrule appellant’s sole point of error.




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                                          CONCLUSION

               Having concluded that appellant procedurally defaulted on his claim challenging

the constitutionality of his sentence because he did not raise it at trial, we affirm the trial court’s

judgment of conviction.



                                               __________________________________________
                                               Melissa Goodwin, Justice

Before Justices Goodwin, Baker, and Smith

Affirmed

Filed: August 22, 2019

Do Not Publish




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