                               Fourth Court of Appeals
                                     San Antonio, Texas
                                 MEMORANDUM OPINION

                                         No. 04-19-00157-CR

                                       Steven Peter MIRELES,
                                              Appellant

                                                  v.

                                        The STATE of Texas,
                                              Appellee

                     From the 38th Judicial District Court, Uvalde County, Texas
                                Trial Court No. 2017-10-13127-CR
                        Honorable Camile Glasscock Dubose, Judge Presiding

Opinion by:       Rebeca C. Martinez, Justice

Sitting:          Sandee Bryan Marion, Chief Justice
                  Rebeca C. Martinez, Justice
                  Luz Elena D. Chapa, Justice

Delivered and Filed: November 6, 2019

AFFIRMED

           Pursuant to a plea agreement, Appellant Steven Peter Mireles pled guilty to two counts of

aggravated sexual assault of a child under the age of six-years-old. The trial court sentenced

Mireles to twenty-five years’ confinement with the sentences to run concurrently. The plea

agreement preserved Mireles’s right to appeal the denial of his motion to quash the two-count

indictment. Mireles argues the trial court erred in denying his motion to quash the indictment

because the statutory minimum sentence—twenty-five-years’ confinement without the possibility

of parole—violates the prohibition against cruel and unusual punishment under the Eighth
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Amendment to the United States Constitution. We overrule Mireles’s sole issue and affirm the

trial court’s judgment.

                                 CRUEL AND UNUSUAL PUNISHMENT

           The crime of aggravated sexual assault of a child under the age of six-years-old is a first-

degree felony and carries a punishment range of twenty-five to ninety-nine years’ confinement.

TEX. PENAL CODE ANN. § 22.021(f). A person convicted of the offense is ineligible for parole.

TEX. GOV’T CODE ANN. § 508.145(a). Mireles argues the trial court erred in denying his motion

to quash the indictment because a mandatory twenty-five-year statutory minimum sentence,

without the possibility of parole, violates the prohibition against cruel and unusual punishment

under the Eighth Amendment to the United States Constitution. Mireles asserts section 22.021(f)

is unconstitutional as applied to a class of offenders with no prior criminal history and who were

not previously registered sex offenders. 1

STANDARD OF REVIEW & APPLICABLE LAW

           We review a trial court’s decision to deny a motion to quash the indictment under a de novo

standard of review. Lawrence v. State, 240 S.W.3d 912, 915 (Tex. Crim. App. 2007). When

reviewing the denial of a motion to quash the indictment that challenges the constitutionality of a

statute:

           [w]e presume that the statute is valid and that the [Texas] Legislature has not acted
           unreasonably or arbitrarily. The burden rests upon the individual who challenges
           the statute to establish its unconstitutionality. In the absence of contrary evidence,
           we will presume that the legislature acted in a constitutionally sound fashion.

Rodriguez v. State, 93 S.W.3d 60, 69 (Tex. Crim. App. 2002) (internal citations omitted).


1
  We recognize that “as-applied challenges may not generally be raised pre-trial because an as-applied challenge
‘depends on the facts developed at trial.’” London v. State, 490 S.W.3d 503, 509 (Tex. Crim. App. 2016). However,
here, “the relevant facts are already present in the record, and there is no need for further development.” Id. Thus,
we will address Mireles’s as-applied challenge. See id. at 510 (holding the intermediate appellate court “could have
addressed Appellant’s as-applied challenge . . . [b]ecause the record [was] sufficient to consider Appellant’s
constitutional claim”).


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         The Eighth Amendment provides that “[e]xcessive bail shall not be required, nor excessive

fines imposed, nor cruel and unusual punishments inflicted.” U.S. CONST. amend. VIII. The

Eighth Amendment’s prohibition on cruel and unusual punishment “requires that punishment be

graduated and proportioned to the offense[;]” however, “this is a narrow principle that does not

require strict proportionality between the crime and the sentence.” State v. Simpson, 488 S.W.3d

318, 322 (Tex. Crim. App. 2016) (citing Harmelin v. Michigan, 501 U.S. 957, 1001 (1991)

(Kennedy, J., concurring)).           “Rather, it forbids only extreme sentences that are ‘grossly

disproportionate’ to the crime.” Id. (citing Ewing v. California, 538 U.S. 11, 23 (2003) (plurality

opinion)).

         Proportionality challenges to sentences generally fall within two classifications. Graham

v. Florida, 560 U.S. 48, 59 (2010). “The first involves challenges to the length of term-of-years

sentences given all the circumstances in a particular case.” Id. This type of challenge requires a

court to determine “whether a sentence for a term of years is grossly disproportionate for a

particular defendant’s crime.” Id. at 60. The second classification “use[s] categorical rules to

define Eighth Amendment standards.” Id. Within this classification is a subset of proportionality

challenges raised in non-capital cases that “pertain[] to the ‘categorical’ application of a

punishment scheme to ‘an entire class of offenders.’” Glover v. State, 406 S.W.3d 343, 347 (Tex.

App.—Amarillo 2013, pet. ref’d) (quoting Graham, 560 U.S. at 61).

         Here, Mireles contends that a mandatory twenty-five-year statutory minimum sentence

without the possibility of parole is a grossly disproportionate punishment when assessed against a

class of offenders with no prior criminal history and who were not previously registered sex

offenders, a class to which he belongs. 2 Thus, Mireles’s argument is “a categorical challenge to a


2
 As part of the plea agreement, the State stipulated on the record that Mireles had no prior criminal history and was
not previously a registered sex offender.


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term-of-years sentence.” See Graham, 560 U.S. at 61. When reviewing a “categorical” challenge

to a statutory punishment scheme:

       the Court of Criminal Appeals has interpreted Graham as requiring the
       consideration of four factors: (1) whether there is a national consensus against
       imposing the particular punishment at issue; (2) the moral culpability of the
       offenders at issue in light of their crimes and characteristics; (3) the severity of the
       punishment; and (4) whether the punishment serves legitimate penological goals.

Glover, 406 S.W.3d at 348 (citing Meadoux v. State, 325 S.W.3d 189, 194 (Tex. Crim. App.

2010)). “[Mireles], as the party challenging Texas Penal Code [section 22.021(f)] as it was written

at the time of his offense, has the burden of establishing its unconstitutionality.” Meadoux,

325 S.W.3d at 194 n.7.

DISCUSSION

        I. NATIONAL CONSENSUS

       “The best evidence of a national consensus with respect to the appropriateness of the

punishment assessed for a particular offense is the legislation enacted by the nation’s legislatures.”

Glover, 406 S.W.3d at 348 (citing Meadoux, 325 S.W.3d at 194). “Actual sentencing practices

are [also] an important part of [a court’s] inquiry into consensus.” Graham, 560 U.S. at 62.

Mireles did not provide any evidence of a national consensus against the imposition of a mandatory

twenty-five-year statutory minimum sentence without parole on first-time sex offenders. See

Meadoux, 325 S.W.3d at 194 n.7 (noting the party challenging a statute as unconstitutional bears

the burden of establishing its unconstitutionality). The enactment of section 22.021(f) by the Texas

Legislature was purportedly the result of a “national movement” to implement stricter penalties

for sex crimes committed against children. See House Comm. on Criminal Jurisprudence, Bill

Analysis, Tex. H.B. 8, 80th Leg., R.S. (2007). Because “[t]he national consensus, as reflected by

the Legislature’s response to this call for legislation” to implement stricter penalties for sex crimes

committed against children, purportedly resulted in the enactment of section 22.021(f), Mireles


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has not shown that the national consensus factor weighs in his favor. See Glover, 406 S.W.3d at

348; see also Meadoux, 325 S.W.3d at 194 n.7.

        II. MORAL CULPABILITY

       In support of Mireles’s contention that a mandatory twenty-five-year statutory minimum

sentence without parole for first-time offenders is a disproportionate sentence, Mireles contends

that a first-time offender, such as himself, is morally less culpable than a habitual sex offender.

Mireles urges this court to engage in a “review of the application of the challenged statute in

relation to other statutes where [an] accused with a history of sexual assault” received a lesser

sentence.   However, “[t]he constitutionality of a given punishment scheme cannot . . . be

determined by simply comparing the punishment schemes applicable to two or more offenses for

purposes of making a ‘proportionality review.’” See Glover, 406 S.W.3d at 347 (recognizing that

the Eighth Amendment does not guarantee proportionality in non-death penalty cases).

       In considering the moral culpability of the offenders at issue in light of their crimes and

characteristics, “[t]he age of the offender and the nature of the crime each bear on the analysis.”

Graham, 560 U.S. at 69. Mireles was an adult at the time of the offense. Cf. id. at 68 (“Juveniles

are more capable of change than are adults, and their actions are less likely to be evidence of

‘irretrievably depraved character’ than are the actions of adults.” (citing Roper v. Simmons, 543

U.S. 551, 570 (2005))). Mireles’s crime targeted the vulnerable. See House Comm. on Criminal

Jurisprudence, Bill Analysis, Tex. H.B. 8, 80th Leg., R.S. (2007) (“Children under 14 years old

are some of the most vulnerable members of society and deserve whatever protections the state

can give them.”). According to the bill analysis, the Texas Legislature considered it “necessary to

provide the best protection possible for Texas children from sex offenders who commit horrific

crimes and to punish appropriately those who victimize some of the most vulnerable members of

society.” Id. Accordingly, considering Mireles’s age, the serious nature of the offense, and the


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vulnerability of the child-victim, the moral culpability factor weighs in favor of the

constitutionality of a mandatory twenty-five-year statutory minimum sentence without parole for

first-time sex offenders convicted of aggravated sexual assault of a child under the age of six-

years-old.

        III. SEVERITY OF THE PUNISHMENT

       The crime of aggravated sexual assault of a child under the age of six-years-old carries a

mandatory twenty-five-year statutory minimum sentence without parole. While “mandatory

penalties may be cruel[,] . . . they are not unusual in the constitutional sense[.]” Harmelin, 501

U.S. at 995. Thus, “[t]here can be no serious contention, then, that a sentence which is not

otherwise cruel and unusual becomes so simply because it is ‘mandatory.’” Id. (rejecting a claim

that it was “cruel and unusual to impose a mandatory sentence” of life imprisonment without the

possibility of parole “without any consideration of so-called mitigating factors such as . . . the fact

that [petitioner] had no prior felony convictions”). Thus, a mandatory sentence alone does not

render a punishment scheme unconstitutional. See id.

       Mireles contends the Texas Legislature never meant to punish first-time offenders as

severely as habitual sex offenders. However, according to section 22.021(f)’s bill analysis, Mireles

was precisely the type of offender the Texas Legislature had in mind when it proposed section

22.021(f). See House Comm. on Criminal Jurisprudence, Bill Analysis, Tex. H.B. 8, 80th Leg.,

R.S. (2007) (“[Section 22.021(f)] would increase the penalties for certain sex crimes committed

against young victims to first-degree felonies to make the potential punishments more

appropriately fit these crimes.”). Mireles urges the court to reform section 22.021(f) into a

graduated punishment scheme that imposes lesser punishments on first-time offenders and more

severe punishments on habitual sex offenders. However, that is not the function of this court. As

Supreme Court Justice Kennedy stated in Harmelin:


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       The . . . [l]egislature has mandated the penalty and has given the state judge no
       discretion in implementing it. It is beyond question that the legislature “has the
       power to define criminal punishments without giving the courts any sentencing
       discretion[.]” Since the beginning of the Republic, Congress and the States have
       enacted mandatory sentencing schemes. To set aside petitioner’s mandatory
       sentence would require rejection not of the judgment of a single jurist . . . but rather
       the collective wisdom of the . . . [l]egislature and, as a consequence, the [state]
       citizenry. We have never invalidated a penalty mandated by a legislature based
       only on the length of sentence, and, especially with a crime as severe as this one,
       we should do so only in the most extreme circumstance.

Id. at 1006–07 (Kennedy, J., concurring) (internal citations omitted).

        IV. PENOLOGICAL GOALS

       “The penological justifications for the sentencing practice are also relevant to the

[categorical-challenge] analysis.” Graham, 560 U.S. at 71. There are four legitimate penological

justifications for a penal sanction: retribution, deterrence, incapacitation, and rehabilitation. Id.

“A sentence lacking any legitimate penological justification is by its nature disproportionate to the

offense.” Id.

       When considering retribution as a penological justification, the Supreme Court in Graham

stated: “Society is entitled to impose severe sanctions on a . . . nonhomicide offender to express

its condemnation of the crime and to seek restoration of the moral imbalance caused by the

offense.” Id. “Whether viewed as an attempt to express the community’s moral outrage or as an

attempt to right the balance for the wrong to the victim,” the case for retribution is stronger for an

adult as compared to a juvenile “whose culpability or blameworthiness is diminished . . . by reason

of youth and immaturity.” Roper, 543 U.S. at 571. “The heart of the retribution rationale is that

a criminal sentence must be directly related to the personal culpability of the criminal offender.”

Tison v. Arizona, 481 U.S. 137, 149 (1987). Thus, considering Mireles was an adult with

heightened personal culpability and blameworthiness, the serious nature of aggravated sexual

assault of a child under six-years-old, and the vulnerability of the child-victim, the penological



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justification of retribution is served by the sentencing scheme in question. See id.; see also House

Comm. on Criminal Jurisprudence, Bill Analysis, Tex. H.B. 8, 80th Leg., R.S. (2007) (“[Section

22.021(f)] is necessary . . . to punish appropriately those who victimize some of the most

vulnerable members of society.”).

          In Glover, the court reasoned, “pedophiles and sexual predators tend to repeat their

offenses[;]” thus, “the penological interests of both deterrence and incapacitation are served by the

sentencing scheme” imposed on the class of offenders to which Mireles belongs.                 Glover,

406 S.W.3d at 350; see also House Comm. on Criminal Jurisprudence, Bill Analysis, Tex. H.B. 8,

80th Leg., R.S. (2007) (stating section 22.021(f) was implemented to keep children safe from

predators and to provide children with “whatever protections the state can give them”). Having

found that the statutory scheme imposed under section 22.021(f) serves the penological

justifications of retribution, deterrence, and incapacitation, it is not “by its nature disproportionate

to the offense.” See Graham, 560 U.S. at 71.

          Considering and balancing these four factors together, we conclude that Mireles has not

carried his burden of showing that the imposition of a mandatory twenty-five-year statutory

minimum sentence without parole on first-time offenders is grossly disproportionate to the offense

of aggravated sexual assault of a child under the age of six-years-old. See Meadoux, 325 S.W.3d

at 196.

                                            CONCLUSION

          Mireles’s sole issue on appeal is overruled, and the judgment of the trial court is affirmed.

                                                    Rebeca C. Martinez, Justice

DO NOT PUBLISH




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