                                                                          ACCEPTED
                                                                     13-14-00271-CR
                                                     THIRTEENTH COURT OF APPEALS
                                                            CORPUS CHRISTI, TEXAS
                                                              12/10/2015 11:26:22 AM
                                                                    Dorian E. Ramirez
                                                                               CLERK


             No. 13-14-271-CR

       IN THE COURT OF APPEALS       FILED IN
                              13th COURT OF APPEALS
 FOR THE THIRTEENTH DISTRICT OF TEXAS
                           CORPUS  CHRISTI/EDINBURG, TEXAS
           AT CORPUS CHRISTI 12/10/2015 11:26:22 AM
                                        DORIAN E. RAMIREZ
                                             Clerk

           VICTOR CAMPOS,
             APPELLANT,

                     v.

        THE STATE OF TEXAS,
             APPELLEE.


ON APPEAL FROM THE 148TH DISTRICT COURT
        NUECES COUNTY, TEXAS

        BRIEF FOR THE STATE


                Douglas K. Norman
                State Bar No. 15078900
                Assistant District Attorney
                105th Judicial District of Texas
                901 Leopard, Room 206
                Corpus Christi, Texas 78401
                (361) 888-0410
                (361) 888-0399 (fax)
                douglas.norman@nuecesco.com

                Attorney for Appellee


    ORAL ARGUMENT IS REQUESTED
                                     TABLE OF CONTENTS

INDEX OF AUTHORITIES .......................................................................... ii

SUMMARY OF THE ARGUMENT ..............................................................1

ARGUMENT ...................................................................................................1

Reply Point
Campos’ forty-five-year sentence did not violate the Eighth
Amendment. ...................................................................................................1

         I. Waiver. ..............................................................................................1
         II. Statement of Facts. .........................................................................3
         III. Proportionality Review. ...............................................................5
         IV. Gravity of the Offense. .................................................................6
         V. Harshness of the Sentence..............................................................7

PRAYER ..........................................................................................................9

RULE 9.4 (i) CERTIFICATION .....................................................................9

CERTIFICATE OF SERVICE ..................................................................... 10
                                    INDEX OF AUTHORITIES

                                                       Cases

Emerson v. State, 880 S.W.2d 759 (Tex. Crim. App. 1994), ..........................8

Ewing v. California, 538 U.S. 11, 123 S.Ct. 1179 (2003). ..............................5

In re Graves, 217 S.W.3d 744 (Tex. App.—Waco 2007, no pet.). .................8

Guthrie-Nail v. State, ---S.W.3d---, PD-0125-14, 2015 WL 5449642 (Tex.
Crim. App., September 16, 2015, rehearing granted November 18, 2015). ..7

Harmelin v. Michigan, 501 U.S. 957, 111 S.Ct. 2680 (1991). ........................5

Harris v. State, 656 S.W.2d 481 (Tex. Crim. App. 1983). ..............................5

Jordan v. State, 495 S.W.2d 949 (Tex. Crim. App. 1973). .............................5

Lankston v. State, 827 S.W.2d 907 (Tex. Crim. App. 1992). ..........................2

Lockyer v. Andrade, 538 U.S. 63, 123 S.Ct. 1166 (2003). ..............................5

McGruder v. Puckett, 954 F.2d 313 (5th Cir. 1992). ......................................6

Moore v. State, 54 S.W.3d 529 (Tex. App.-Fort Worth 2001, pet. ref'd). ......6

Noland v. State, 264 S.W.3d 144 (Tex. App.-Houston [1st Dist.] 2007, pet.
ref'd). ................................................................................................................1

Resendez v. State, 306 S.W.3d 308 (Tex. Crim. App. 2009). .........................2

Reyna v. State, 168 S.W.3d 173 (Tex. Crim. App. 2005). ..............................2

Samuel v. State, 477 S.W.2d 611 (Tex. Crim. App. 1972)..............................5

Solem v. Helm, 463 U.S. 277, 103 S.Ct. 3001 (1983). ............................... 6, 8

Sullivan v. State, 975 S.W.2d 755 (Tex. App.-Corpus Christi 1998,
no pet.). ....................................................................................................... 6, 8

                                                           ii
Trevino v. State, 174 S.W.3d 925 (Tex. App.-Corpus Christi 2005, pet.
ref'd). ................................................................................................... 2, 5, 6, 8
                                             Statutes & Rules
Tex. Penal Code § 12.32. .................................................................................7

Tex. Penal Code § 30.02. .................................................................................3

Tex. R. App. P. 33.1. .......................................................................................2

1 Steven Goode et al., Guide to the Texas Rules of Evidence § 201.2 (3d
ed.2002). ........................................................................................................8




                                                         iii
                            NO. 13-14-271-CR

VICTOR CAMPOS,                       §    COURT OF APPEALS
         Appellant,                  §
                                     §
V.                                   §       FOR THE THIRTEENTH
                                     §
THE STATE OF TEXAS,                  §
         Appellee.                   §       DISTRICT OF TEXAS

                        BRIEF FOR THE STATE

TO THE HONORABLE COURT OF APPEALS:

                  SUMMARY OF THE ARGUMENT

      Campos waived his Eighth Amendment complaint by failing to raise it

in the trial court.   Alternatively, his forty-five-year sentence was not

disproportionate or excessive considering the nature and circumstances of

the present burglary and armed robbery.

                              ARGUMENT

                             Reply Point
                Campos’ forty-five-year sentence did not
                   violate the Eighth Amendment.

                                I. Waiver.

      When the sentence imposed is within the punishment range and is not

illegal, the failure to specifically object to an allegedly disproportionate

sentence in the trial court or in a post-trial motion waives any error on

appeal. Noland v. State, 264 S.W.3d 144, 151 (Tex. App.-Houston [1st
Dist.] 2007, pet. ref'd); Trevino v. State, 174 S.W.3d 925, 927-28 (Tex.

App.-Corpus Christi 2005, pet. ref'd); TEX. R. APP. P. 33.1(a).

      In the present case, when the trial court sentenced Campos to forty-

five years in prison, he objected only, “I don’t think I deserve that much

time.” (RR vol. 1, p. 51) A complaint that he did not “deserve” his sentence

does not equate to a complaint that his sentence was constitutionally

disproportionate or excessive. This was clearly insufficient to bring to the

trial judge’s attention the constitutional claim that Campos raises on appeal.

See Reyna v. State, 168 S.W.3d 173, 179 (Tex. Crim. App. 2005) (requiring

the defendant to bring to the trial court’s attention the constitutional claim he

raises on appeal); see also Resendez v. State, 306 S.W.3d 308, 312 (Tex.

Crim. App. 2009) (discussing Rule 33.1(a) and stating that “a party must be

specific enough so as to ‘let the trial judge know what he wants, why he

thinks himself entitled to it, and do so clearly enough for the judge to

understand him at a time when the trial court is in a proper position to do

something about it,’” (quoting Lankston v. State, 827 S.W.2d 907, 909 (Tex.

Crim. App. 1992))).

      Nor does the record show that Campos filed a motion for new trial or

otherwise raised an Eighth Amendment complaint about his sentence prior

to the present ground on appeal. Accordingly, Campos waived error on his


                                        2
present claim that his sentence was excessive or disproportionate under the

Eighth Amendment.

      However, even if he had preserved error, he fails to prove his claim.

                           II. Statement of Facts.

      Victor Campos was indicted for the First Degree Felony of Burglary

of a Habitation with the commission or attempted commission of Robbery.

(CR p. 5)1

      Campos judicially confessed and stipulated to facts contained in

attached exhibits (CR p. 68) showing, among other things, that he pulled and

cocked a gun during his encounter with the victim and her young daughter

(CR p. 70), that he was eventually arrested with property stolen from the

residence as well as marijuana and crack cocaine (CR p. 87), and that he was

belligerent and resisted officers when he was found and arrested shortly after

the burglary. (CR p. 94)

      At the original plea hearing, the victim, Leslie Espinosa, testified that

Campos and a couple others broke into her home and Campos held a gun in

his hand as he demanded money from her in the presence of her young

daughter, who was pleading with Campos not to kill her mom. (Supp. RR


1
 A person commits First Degree Burglary of a Habitation if, without the
consent of the owner, he enters a habitation and commits or attempts to
commit a felony other than theft. See Tex. Penal Code § 30.02 (a)(3) & (d).
                                      3
vol. 2, p. 15) The victim testified that Campos then cocked the gun and

pointed it at her daughter, telling Espinosa to “shut her up.” (Supp. RR vol.

2, p. 15)

      Campos testified on his own behalf, claiming that he was drunk and

high on drugs at the time of the burglary. (Supp. RR vol. 2, p. 23) Campos

also admitted that he had been arrested only a week before for terroristic

threat (Supp. RR vol. 2, pp. 25-26), that generally he had been using drugs at

the time of the offense (Supp. RR vol. 2, p. 27), and that he had given drugs

to one of his accomplices to secure his participation in the burglary. (Supp.

RR vol. 2, pp. 28 & 30)

      At a subsequent sentencing hearing before a separate judge, assigned

to the case after the original judge recused himself, Espinosa again testified

to the same events as before, including Campos’ pointing a gun at her

daughter and telling Espinosa to shut her up. (RR vol. 1, p. 12) Espinosa

also related that she was six months pregnant at the time of the burglary.

(RR vol. 1, p. 13)

      Campos again testified that he was drunk and on drugs at the time.

(RR vol. 1, p. 19) Campos also testified that he smoked marijuana and was

taking a lot of pills. (RR vol. 1, p. 22) Campos admitted that, when arrested

shortly after the burglary, cocaine and marijuana were found on him. (RR


                                      4
vol. 1, p. 25) Campos also admitted that he had been selling drugs. (RR vol.

1, p. 31)

      The written judgment reflects that Campos was convicted on his

guilty plea and sentenced to 45 years in prison. (CR p. 106)

                       III. Proportionality Review.

      The Eighth Amendment to the United States Constitution does not

require strict proportionality between the crime and the sentence; rather, it

forbids extreme sentences that are grossly disproportionate to the crime.

Ewing v. California, 538 U.S. 11, 23, 123 S.Ct. 1179, 155 L.Ed.2d 108

(2003). The precise contours of the grossly disproportionate standard are

unclear, but it applies only in exceedingly rare and extreme cases. See

Lockyer v. Andrade, 538 U.S. 63, 73, 123 S.Ct. 1166, 155 L.Ed.2d 144

(2003).

      Generally, punishment which falls within the limits prescribed by a

valid statute is not excessive, cruel, or unusual. Trevino, 174 S.W.3d at 928

(citing Harris v. State, 656 S.W.2d 481, 486 (Tex. Crim. App. 1983) (en

banc); Jordan v. State, 495 S.W.2d 949, 952 (Tex. Crim. App. 1973);

Samuel v. State, 477 S.W.2d 611, 614 (Tex. Crim. App. 1972)).

      Proportionality review of a legal sentence remains somewhat

ambiguous and uncertain. See Harmelin v. Michigan, 501 U.S. 957, 111


                                      5
S.Ct. 2680 (1991); Solem v. Helm, 463 U.S. 277, 291, 103 S.Ct. 3001

(1983); Trevino, 174 S.W.3d at 928; Sullivan v. State, 975 S.W.2d 755, 757-

58 (Tex. App.-Corpus Christi 1998, no pet.). However, to the extent that

such review remains viable, the appellate court should look first to the

gravity of the offense and the harshness of the penalty. See Solem, 463 U.S.

at 290; McGruder v. Puckett, 954 F.2d 313, 316 (5th Cir. 1992). If, based

on his present conviction, his criminal history, and the punishment range

available, appellant's sentence is not grossly disproportionate to his crime,

this ends the analysis in the absence of other evidence in the appellate record

of the sentences imposed for other crimes in Texas or for the same crime in

other jurisdictions upon which a comparative evaluation might be based.

See Solem, 463 U.S. at 292; McGruder, 954 F.2d at 316; Sullivan, 975

S.W.2d at 757-58.

                        IV. Gravity of the Offense.

      The gravity of the offense is judged in light of the harm caused or

threatened to society and the offender's culpability. Moore v. State, 54

S.W.3d 529, 542 (Tex. App.-Fort Worth 2001, pet. ref'd) (citing Solem, 463

U.S. at 291-92).

      In the present case, the evidence shows that Campos broke into the

victim’s home and cocked and pointed a gun at her young child in the course


                                       6
of robbing her, whether or not the trial court exercised its discretionary

authority in making a finding in the written judgment that he used a deadly

weapon. See Guthrie-Nail v. State, ---S.W.3d---, PD-0125-14, 2015 WL

5449642 (Tex. Crim. App., September 16, 2015, rehearing granted

November 18, 2015) (suggesting that the trial judge has discretion to decline

to make a deadly weapon finding even when use of a deadly weapon is an

element of the offense). Lack of a deadly weapon finding does not erase this

evidence or the effect it may have on punishment. In addition, the evidence

showed that Campos arranged the burglary and paid another person with

drugs to assist him, that Campos was using and selling drugs at the time, and

that he was abusive with the police when arrested shortly after the crime.

      Accordingly, the gravity of the offense and the circumstances justified

a stiff punishment.

                       V. Harshness of the Sentence.

      The present forty-five-year sentence was clearly less than the

maximum life sentence, See Tex. Penal Code § 12.32 (a), and is not so harsh

as to be grossly disproportionate, in view of both the seriousness of the

offense and the circumstances of the present case. Accordingly, Campos has

failed to make even a threshold showing that his sentence was grossly

disproportionate.


                                      7
      Moreover, because Campos failed to present any evidence in the trial

court of sentences imposed for other similar crimes in Texas or for the same

crimes in other jurisdictions, that court had no data before it to enable it to

perform a comparative evaluation using the remaining Solem factors. See

Solem, 463 U.S. at 292; see also Sullivan, 975 S.W.2d at 757-58.

      Likewise, the reviewing Court has no record evidence to perform such

an analysis and should not look beyond the appellate record to do so, as

Campos invites it to do. (Appellant’s Brief pp. 11-16) While this Court

may have some discretion to judicially notice facts that were not developed

below, see, e.g., Emerson v. State, 880 S.W.2d 759, 765 (Tex. Crim. App.

1994), such is generally regarded as the exception and not the rule and

requires a “high degree of indisputability.” In re Graves, 217 S.W.3d 744,

750-51 (Tex. App.—Waco 2007, no pet.) (citing 1 Steven Goode et al.,

Guide to the Texas Rules of Evidence § 201.2 (3d ed.2002)). Moreover, in

addition to the general rule of waiver discussed above, it would be especially

unfair to the trial court to fault it for failing to conduct a comparative

analysis on date that was not brought to its attention at sentencing or on

motion for new trial. In Trevino, this Court refused to consider sentences

imposed in other cases when no such evidence was submitted to the trial

court. Trevino, 174 S.W.3d at 928-29.


                                       8
      Campos has clearly failed to prove that his sentence was

disproportionate of excessive.

                                  PRAYER

      For the foregoing reasons, the State respectfully requests that the

judgment of the trial court be affirmed.


                                 Respectfully submitted,
                                   Douglas K. Norman
                                 /s/
                                 ___________________
                                 Douglas K. Norman
                                 State Bar No. 15078900
                                 Assistant District Attorney
                                 105th Judicial District of Texas
                                 901 Leopard, Room 206
                                 Corpus Christi, Texas 78401
                                 (361) 888-0410
                                 (361) 888-0399 (fax)
                                 douglas.norman@nuecesco.com



                      RULE 9.4 (i) CERTIFICATION

      In compliance with Texas Rule of Appellate Procedure 9.4(i)(3), I

certify that the number of words in this brief, excluding those matters listed

in Rule 9.4(i)(1), is 1,700.

                                   Douglas K. Norman
                                 /s/
                                 ___________________
                                 Douglas K. Norman


                                       9
                     CERTIFICATE OF SERVICE

      This is to certify that a copy of this brief was e-mailed on December

10, 2015, to Appellant’s attorney, Ms. Celina Lopez Leon, at

celinamarielopez@gmail.com.



                                /s/Douglas K. Norman
                                ___________________
                                Douglas K. Norman




                                     10
