AFFIRM; and Opinion Filed July 15, 2019.




                                                        In The
                                      Court of Appeals
                               Fifth District of Texas at Dallas
                                               No. 05-18-00387-CR

                        HECTOR MANUEL TOLEDO-ARGUETA, Appellant
                                          V.
                              THE STATE OF TEXAS, Appellee

                            On Appeal from the 219th Judicial District Court
                                         Collin County, Texas
                                Trial Court Cause No. 219-82111-2013

                                    MEMORANDUM OPINION
                                 Before Justices Myers, Osborne, and Nowell
                                         Opinion by Justice Osborne
          Appellant was indicted for both continuous sexual abuse of a child under the age of

fourteen and for aggravated sexual assault of a child under the age of fourteen.1 Appellant pled


   1
       The indictment alleged as follows:

          [D]uring a period that was 30 days or more in duration, committed two or more acts of sexual abuse
          against . . . (D.F.) . . ., said acts of sexual abuse having been violations of one or more of the
          following penal laws, including:

          aggravated sexual assault of a child, intentionally and knowingly cause the female sexual organ of
          . . . (D.F.) . . ., a child then younger than fourteen (14) years of age, and not the spouse of the
          defendant, to contact the male sexual organ of the defendant;

          AND/OR

          aggravated sexual assault of a child, intentionally and knowingly cause the female sexual organ of
          . . . (D.F.) . . ., a child then younger than fourteen (14) years of age, and not the spouse of the
          defendant, to contact the mouth of the defendant;

          and each of the aforementioned acts of sexual abuse were committed on more than one occasion
          and, at the time of the commission of each of the acts of sexual abuse, the defendant was seventeen
          (17) years of age or older and . . . (D.F.) . . ., was a child younger than fourteen (14) years of age.
guilty to the offense of aggravated sexual assault of a child as part of an “open plea” agreement

with the State. The trial court found appellant guilty on his plea. Because there was no plea bargain

agreement as to sentencing, the trial court held a hearing on the sole issue of punishment.

Following that hearing, the trial court sentenced appellant to thirty-five years imprisonment.

                                                  Background

        At the punishment hearing, D.F., who was twenty-one at the time of trial, testified that

appellant had been her mother’s boyfriend when she was eleven years old. In the mornings before

she went to school, when her mother was at work, appellant would “perform sex acts” on her.

Specifically, appellant, who would be naked, would take off D.F.’s clothes and they would end up

on a bed. Appellant would hold D.F. down by her wrists, lick her vagina, and rub his penis on her

vagina. This happened multiple times over the course of several months, possibly as often as every

day. Penetration, however, did not occur.

        D.F. testified that she felt ashamed, embarrassed and disgusting. She made outcry when,

in high school, she participated in a forensic interview for “similar-type things” that had occurred

between her sister and their biological father.2

        D.F. testified that these events had adversely impacted her life. She could not “really trust

anyone” or figure out who she was. She did not know if she wanted children or if she could even

live a full life. She did not want this to happen to anyone else.

        Yolanda Castaneda, D.F.’s mother, testified that she dated appellant for about a year and

that he’d lived with her and her children for more than six months. She knew that appellant was

from Honduras and had a daughter there, though she did not know much about what his life had

been like in Honduras.




    2
      Testimony was heard that D.F.’s biological father had been convicted of sexually abusing this sister. There was
no evidence that he had assaulted D.F.
                                                        –2–
          Castaneda testified that appellant made a living selling drugs. Castaneda also testified that

appellant hit her on one occasion, slapped her in the face, pulled her hair and broke one of her

fingers. Appellant left her home when she called the police “due to domestic violence.” Appellant

did not return to her home after that.

          Castaneda testified that appellant had caused irreparable harm to her daughter. D.F. was

very depressed and had undergone therapy for the six months preceding trial. Castaneda testified

that she did not feel that appellant should be placed on community supervision because D.F. would

not feel safe “knowing that he’s . . . on the streets.” Castaneda also expressed the opinion that D.F.

would feel that justice had not been done for her if appellant was placed on community supervision.

          Appellant testified that he was born in Honduras. His father abandoned the family when

appellant was six years old. Because the family did not have enough money to pay for school,

appellant completed only the third grade. Appellant came to the United States in 2003 when he

was seventeen years old because he was being pressured to join a gang in Honduras. He worked

from 2005 until 2008 at La Michoacana, a grocery store. He denied that he had been selling drugs.

After he pled guilty to assaulting Castaneda, he served thirty days in jail before being deported

back to Honduras. Appellant reunited with his wife and daughter in Honduras and started a

business buying and selling gold with money he had saved in the United States. At some point, a

local gang demanded he pay 12,000 pesos a month. Appellant made one payment. When the gang

demanded more money, he attempted to return to the United States but was arrested and detained

by immigration officials.3 Appellant testified that he had never had any trouble with the Honduran

police and had never been to jail in that country. He understood that he was facing deportation but

he feared to return to Honduras. Appellant testified that he wanted to go to Panama, Mexico or

Costa Rico; he had no intention of ever returning to the United States.


   3
       At the time of the punishment hearing, Appellant had been in federal detention for 500 “odd days.”
                                                        –3–
       While appellant admitted that he had committed the acts of aggravated sexual assault as

alleged in the indictment, he testified that D.F. and Castaneda were “inventing a lot of things.” He

denied that he ever broke Castaneda’s finger and stated that Castaneda made up the story to get

him into trouble.

                         Appellant’s Allegations and State’s Response

       In his first issue, appellant claims that his thirty-five year prison sentence was grossly

disproportionate to the offense of aggravated sexual assault of a child and thereby violated the

constitutional prohibition against cruel and unusual punishment. In his second issue, appellant

claims that the trial court abused its discretion by failing to consider the mitigating evidence he

presented at the punishment hearing. Appellant asks this Court to reverse and remand for a new

punishment hearing.

       The State responds that appellant has not preserved these issues for appellate review

because he did not object to the sentence at the time it was imposed or raise the issues he now

urges on appeal in his motion for new trial. The State further responds that the trial court did not

abuse its discretion by sentencing appellant to thirty-five years imprisonment because (1)

appellant’s sentence is well within the statutory punishment range, (2) the trial court’s decision is

supported by the evidence, and (3) there is no evidence that the trial court refused to consider

appellant’s mitigating evidence.

                              The Sentence is not Disproportionate

       In his first issue, appellant claims that his thirty-five year prison sentence was grossly

disproportionate to the offense of aggravated sexual assault of a child and thereby violated the

constitutional prohibition against cruel and unusual punishment.

       To preserve error for appellate review, the record must show that appellant made a timely

request, objection, or motion. TEX. R. APP. P. 33.1(a)(1). Constitutional rights, including the right

                                                –4–
to be free from cruel and unusual punishment, may be waived. Rhoades v. State, 934 S.W.2d 113,

120 (Tex. Crim. App. 1996); Davis v. State, 323 S.W.3d 190, 196 (Tex. App.—Dallas 2008, pet.

ref’d). Here, appellant did not object on grounds of disproportionality when the trial court

pronounced sentence, even though the trial court afforded appellant that opportunity. 4 Nor did

appellant raise this issue in his motion for new trial.5 This Court concludes that appellant has not

preserved the issue for appellate review. Rhoades, 934 S.W.2d at 120; Davis, 323 S.W.3d at 196.

          Even if appellant had preserved this issue for review, this Court could not find that the

sentence assessed was constitutionally disproportionate to the offense for which appellant was

convicted.

          The concept of proportionality in sentencing is embodied in the Eighth Amendment’s

prohibition of cruel and unusual punishment. U.S. CONST. amend. VIII, XIV; State v. Simpson,

488 S.W.3d 318, 322 (Tex. Crim. App. 2016); see also TEX. CONST. art. I §13. This is a narrow

principle that does not require strict proportionality between the crime and the sentence imposed.

Simpson, 488 S.W.3d at 322 (citing Harmelin v. Michigan, 501 U.S. 957, 1001 (1991) (Kennedy,

J. concurring)). Instead, it forbids only those extreme sentences that are so “grossly

disproportionate” to the crime as to amount to cruel and unusual punishment. Id. (citing Ewing v.

California, 538 U.S. 11, 23 (2003)). Generally, punishment assessed within the statutory limits is

not considered excessive, cruel, or unusual. Id. at 323.



    4
        The record reflects the following at the time the trial court pronounced sentence:

          THE COURT: All right. At this time, based upon the plea and based upon the Court’s findings, I
          will sentence him to 35 years in the Texas Department of Corrections with 30 – with 503 days back
          time credit under the terms that I previously outlined. Anything further, counsel?

          [THE PROSECUTOR]: Nothing from the State, Your Honor.

          [DEFENSE COUNSEL]: No, [Y]our Honor.

    5
      The motion for new trial alleged only that “[t]he sentence in this cause is contrary to the law and the evidence”
and that the trial court had discretion to grant a new trial “in the interests of justice.”
                                                          –5–
         To determine whether a sentence for a term of years is grossly disproportionate for a

particular crime, this Court must judge the severity of the sentence in light of the harm caused or

threatened to the victim, the culpability of the offender, and the offender’s prior adjudicated and

unadjudicated offenses. Id. (citing to Graham v. Florida, 560 U.S. 48, 60 (2010)). In the rare case

in which this threshold comparison leads to an inference of gross disproportionality, this Court

then compares the sentence with the sentences received by other offenders in the same jurisdiction

and with the sentences imposed for the same crime in other jurisdictions. Id. (citing to Graham,

560 U.S. at 60). It is only when this comparative analysis validates an initial judgment that the

sentence is grossly disproportionate that the sentence is deemed cruel and unusual. Id.

         Aggravated sexual assault of a child is a first-degree-felony with an available punishment

range of five to ninety-nine years or life in prison.6 See TEX. PENAL CODE ANN. §§ 12.32;

22.021(a)(1)(B), (a)(2)(B). The thirty-five year sentence assessed by the trial court was well within

the applicable range of punishment.

         The record in this case does not lead to an inference of gross disproportionality. The victim

in this case, D.F., was eleven years old at the time appellant sexually assaulted her repeatedly; she

suffered continuing psychological trauma as a result. Appellant’s culpability for this offense was

established by his guilty plea and by his admission at the punishment hearing that he had

committed the acts of sexual assault alleged in the indictment. While appellant did not have a long

history of prior criminal offenses, he had been convicted for assaulting D.F.’s mother. Because

the sentence is supported by the evidence, this is not a rare or extreme case where it can be held

that the sentence is grossly disproportionate to the offense.




    6
      The law would also have permitted the trial court to place appellant on deferred adjudication community
supervision if the trial court found it was in the victim’s best interest. See TEX. CODE CRIM. PROC. ANN. art. 42A.102
(a).

                                                         –6–
       Additionally, appellant argues that the sentence is disproportionate because the State

offered a plea bargain for a twenty year sentence prior to appellant’s plea and, in argument to the

trial court at the conclusion of the punishment hearing, suggested a sentence of “no less than”

thirty years. At a pre-trial hearing, the State offered appellant two potential plea bargain

agreements: (1) an open plea on the lesser included offense of aggravated sexual assault of a child

or (2) in the alternative, a plea to aggravated sexual assault of a child and a twenty year sentence.

The trial court explained to appellant that the punishment range for continuous sexual abuse of a

child was “a minimum of 25 years to a maximum of 99 years or life,” while the applicable range

of punishment for aggravated sexual assault of a child was “a minimum of 25 years to a maximum

of 99 years or life.” The trial court also explained that while parole was a possibility for a

conviction on aggravated sexual assault after an offender had served “one-half of their sentence or

30 years, whichever one is less,” parole was not a possibility for the offense of continuous sexual

abuse of a child until the offender had completed a “minimum of 25 calendar years in prison.”

Defense counsel told appellant that the only way to avoid the “catastrophe of 25 years minimum

with no parole” was to “make a deal.” Defense counsel established that appellant wanted a

sentence of five years, but the State rejected that offer. Appellant also stated that he could accept

“six or seven.” The trial court allowed the parties some time to negotiate. Ultimately appellant

accepted the offer of an open plea on the lesser included aggravated sexual assault of a child.

During final jury argument on that plea, the State asked for a sentence of “not less than 30 years.”

Without explanation, the trial court sentenced appellant to thirty-five years imprisonment.

       A trial court is not bound by a prosecutor’s recommendation as to punishment. See TEX.

CODE CRIM. PROC. ANN. art. 26.13(a)(2). The decision of what particular punishment to assess

within the statutorily prescribed range for any given offense is a normative, discretionary function

of the fact-finder. Barrow v. State, 207 S.W.3d 377, 379–80 (Tex. Crim. App. 2006). The thirty-

                                                –7–
five-year sentence is not made excessive merely because it exceeds the State’s original offer of

twenty years and the State’s later argument for “not less than” thirty years. See Kim v. State, 283

S.W.3d 473, 475 (Tex. App.—Fort Worth 2009, pet. ref’d) (holding that a sentence of seven years,

which was twice as long as the sentence offered by the State, was within the applicable punishment

range and not excessive). Appellant’s first issue is overruled.

                              Consideration of Mitigating Evidence

       In his second issue, appellant claims that the trial court abused its discretion by failing to

consider the mitigating evidence he presented at the punishment hearing.

       Appellant’s failure to raise any objection to the punishment assessed either at trial or in his

motion for new trial is not a procedural bar to this issue. The right to be sentenced by a neutral and

detached magistrate who properly considers the entire range of punishment is a substantive right

“necessary to effect the proper functioning of our criminal justice system.” Grado v. State, 445

S.W.3d 736, 741 (Tex. Crim. App. 2014). Absent an affirmative and effective waiver of that right,

the issue may be raised for the first time on appeal. Id. at 742-43.

       A trial court denies a defendant due process when it arbitrarily refuses to consider the entire

range of punishment. Id. at 739. Absent a clear showing of bias, this Court presumes that the trial

court was neutral and detached and that it did not act arbitrarily. Brumit v. State, 206 S.W.3d 639,

645 (Tex. Crim. App. 2006). Bias is not shown when (1) the trial court hears extensive evidence

before assessing punishment, (2) the record contains explicit evidence that the trial court

considered the full range of punishment, and (3) the trial court made no comments indicating

consideration of less than the full range of punishment. Id.

       Appellant claims that the trial court did not seriously consider the mitigating evidence that

he offered. Appellant claims that, through his testimony, he showed that he had suffered a difficult




                                                 –8–
life in Honduras,7 he had been denied an education, he had been pressured to join a gang (which

he resisted by coming to the United States) and subjected to threats of gang violence, he had been

previously deported, and he feared a return to Honduras. He had already served over 500 days in

federal detention. Appellant also claims that he established that he was hardworking, both in

Honduras and in the United States, had only one prior offense, and was only twenty-one or twenty-

two at the time he committed this crime.

         At the punishment hearing, the trial court judge made no comments which suggest that he

refused to consider appellant’s mitigating evidence. In fact, appellant provided lengthy testimony

in support of his request for deferred adjudication and defense counsel argued for a deferred

sentence to the trial court.8 After the State presented its argument, the trial court asked the parties

to “give me just a moment.” The record reflects a “[l]ong pause” in the proceedings. Without any

additional comments, the trial court found appellant guilty on his guilty plea and sentenced him to

thirty-five years imprisonment.

         Appellant points to nothing in the record that indicates the trial court refused to consider

his mitigating evidence. Notably, his defense counsel told the trial court that he was not offering

appellant’s difficult life in Honduras as mitigating evidence. The fact that appellant presented

additional mitigating evidence—such as serving over 500 days in jail, his relative youth at the time

of the offense, his work ethic, and his support for his families in the United States and Honduras—

does not, in and of itself, support his assertion that “[t]his evidence was not taken seriously and

resulted in a cruel sentence.” On this record, it must be presumed that the trial court acted properly

and considered all the evidence presented before sentencing appellant.


    7
      In final argument to the court, defense counsel did not offer appellant’s difficult life in Honduras as mitigation,
but rather for the trial court’s consideration of the effects of deportation to a country where gangs controlled many
communities.
     8
       Defense counsel argued in favor of deferred adjudication, in part, because it could result in an earlier deportation
date than if appellant served a term of years in a Texas prison.
                                                           –9–
       Because the record does not clearly show that the trial court did not consider the full range

of punishment, we conclude there is no error in the sentence assessed by the trial court. We

overrule appellant’s second issue.

                                           Conclusion

       The trial court’s judgment is affirmed.




                                                   /Leslie Osborne/
                                                   LESLIE OSBORNE
                                                   JUSTICE


DO NOT PUBLISH
TEX. R. APP. P. 47.2(b)

180387F.U05




                                                 –10–
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                      JUDGMENT

 HECTOR MANUEL TOLEDO-                                 On Appeal from the 219th Judicial District
 ARGUETA, Appellant                                    Court, Collin County, Texas
                                                       Trial Court Cause No. 219-82111-2013.
 No. 05-18-00387-CR         V.                         Opinion delivered by Justice Osborne.
                                                       Justices Myers and Nowell participating.
 THE STATE OF TEXAS, Appellee


Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.


Judgment entered this 15th day of July, 2019.




                                                –11–
