Opinion
05-22-00948-CR
02-28-2024
CHRISTOPHER ANTHONY AVILA, Appellant v. THE STATE OF TEXAS, Appellee
Do Not Publish TEX. R. APP. P. 47.2(b)
On Appeal from the 363rd Judicial District Court Dallas County, Texas Trial Court Cause No. F22-00298-W
Before Justices Carlyle, Goldstein, and Breedlove
MEMORANDUM OPINION
BONNIE LEE GOLDSTEIN JUSTICE
Christopher Anthony Avila appeals his capital murder conviction. A jury convicted appellant and, pursuant to mandatory sentencing guidelines, the trial court assessed punishment at life imprisonment without parole. In two issues, appellant argues 1) his sentence violates his Eighth Amendment rights in that the sentence is grossly disproportionate to the crime and inappropriate to the offender, and 2) the judgment should be reformed to reflect that the sentence was imposed by the judge rather than the jury. As modified, we affirm the trial court's judgment.
The undisputed facts are based on the record, the evidence, including video surveillance cameras, "phone dumps," and testimony adduced during the trial.
During the early morning hours of May 15, 2020, appellant's girlfriend, Laysha Garcia, was riding in a car with Cristian Marmolejo, Jason Baez, and another woman. Garcia and appellant exchanged multiple text messages, including a photo of a pistol and the information that the pistol was in the center console. The last text from Garcia asked appellant if he was "still robbing him," and appellant replied, "Yes." Appellant was riding in another car with Garcia's brother, Jose, and Luis Gonzalez. While Marmolejo was stopped at a convenience store, Jose parked his vehicle so that it blocked Marmolejo's car. During the confrontation that followed, appellant, wearing black and carrying an assault rifle, first aimed at Baez and shot and killed him. Appellant then turned his attention toward Marmolejo and raised his gun toward Marmolejo; however, appellant lowered the assault rifle after it became clear that Jose was already shooting Marmolejo. Marmolejo also died from his wounds.
Appellant, Jose, Garcia, Gonzalez, and the other woman left the scene in Jose's red Charger, which was found "crashed out" in an alley. Police searched for weapons or evidence that might have been left or thrown from the vehicle, and they recovered the assault rifle and the pistol in a wooded area, with the help of an ATF K-9. Police also found appellant and the others in "the shed of the backyard of a house."
Appellant was charged by indictment with capital murder of multiple persons, Baez and Marmolejo, in the course of committing and attempting to commit the offense of robbery of the decedents. Following trial, a jury convicted appellant of capital murder as charged in the indictment. Pursuant to mandatory sentencing guidelines, the trial court sentenced appellant to life imprisonment without parole. Following the denial of appellant's motion for new trial, this appeal followed.
In his first issue, appellant argues his sentence violates his Eighth Amendment rights in that the sentence is grossly disproportionate to the crime and inappropriate to the offender.
We first note that appellant did not object to his sentence on the basis that it violates the Eighth Amendment in the trial court, either when he was sentenced at the conclusion of trial or in his motion for new trial. To preserve a complaint for our review, a party must first present "to the trial court a timely request, objection, or motion" stating the specific grounds for the desired ruling if not apparent from the context. Tex.R.App.P. 33.1(a)(1). In fact, almost all error-even constitutional error-may be forfeited if the appellant failed to object. Fuller v. State, 253 S.W.3d 220, 232 (Tex. Crim. App. 2008). To preserve a complaint that a sentence is grossly disproportionate, constituting cruel and unusual punishment, a defendant must present to the trial court a motion stating the specific grounds for the ruling desired. Reynolds v. State, 430 S.W.3d 467, 471 (Tex. App.-San Antonio 2014, no pet.). Because Appellant did not raise this issue at trial, he presents nothing for this Court to review. See Tex. R. App. P. 33.1(a)(1).
Appellant's argument centers around pre-trial negotiations in which appellant sought to have the State consider a sentence of 55 years in response to the State's plea bargain offer of conviction of the lesser included offense of murder with a life sentence with the possibility of parole. Appellant wanted to plead guilty to the lesser included offense but wanted a jury trial and the right to appeal. Appellant proceeded forward with trial to preserve his appellate rights after being advised that if found guilty of capital murder the sentence is "automatic life imprisonment without parole."
Nevertheless, the United States Supreme Court has concluded that an automatic life-sentence without parole does not violate the Eighth Amendment. See Harmelin v. Michigan, 501 U.S. 957, 994-96 (1991). Multiple courts, including this one, have continued to follow Harmelin, holding that the Eighth Amendment does not guarantee adult defendants an individualized punishment hearing when sentenced to life in prison without the possibility of parole for capital murder. See Simms v. State, No. 06-18-00181-CR, 2019 WL 2479845, at *10 (Tex. App.- Texarkana June 14, 2019, pet. ref'd) (mem. op., not designated for publication); Cormier v. State, 540 S.W.3d 185, 193 (Tex. App.-Houston [1st Dist.] 2017, pet. ref'd); Kim v. State, No. 05-14-00138-CR, 2015 WL 1935948, at *6 (Tex. App.- Dallas Apr. 29, 2015, no pet.) (mem. op., not designated for publication); Lewis v. State, 448 S.W.3d 138, 147 (Tex. App.-Houston [14th Dist.] 2014, pet. ref'd); Buhl v. State, 960 S.W.2d 927, 935-36 (Tex. App.-Waco 1998, pet. ref'd).
The Court of Criminal Appeals has found no distinction between the protections offered under the Eighth Amendment of the United States Constitution and article I, section 13 of the Texas Constitution. See Cantu v. State, 939 S.W.2d 627, 645 (Tex. Crim. App. 1997). One of our sister courts has concluded penal code section 12.31(a)(2) does not impose cruel and unusual punishment prohibited by both the United States and Texas Constitutions. Modarresi v. State, 488 S.W.3d 455, 467 (Tex. App.-Houston [14th Dist.] 2016, no pet.). Accordingly, under these authorities, a mandatory life sentence for an adult defendant does not violate the United States and Texas constitutional protections against cruel and unusual punishment. We overrule appellant's first issue.
Section 12.31(a)(2) provides that an individual adjudged guilty of a capital felony in a case in which the state does not seek the death penalty shall be punished by imprisonment in the Texas Department of Criminal Justice for life without parole, if the individual committed the offense when 18 years of age or older. Tex. Penal Code Ann. § 12.31(a)(2).
In his second issue, appellant asks that we reform the judgment to reflect that the sentence was imposed by the judge rather than the jury. The State concurs that the judgment should be reformed in this manner. This Court has the power to correct and reform the judgment of the court below to make the record speak the truth when it has the necessary data and information to do so, or make any appropriate order as the law and the nature of the case may require. Asberry v. State, 813 S.W.2d 526, 529 (Tex. App.-Dallas 1991, pet. ref'd). Accordingly, we modify the judgment to reflect that the sentence was imposed by the judge rather than the jury. We sustain appellant's second issue.
As modified, we affirm the trial court's judgment.
JUDGMENT
Based on the Court's opinion of this date, the judgment of the trial court is MODIFIED as follows: in the space marked "Punished assessed by," "Jury" is deleted, and "Court" is substituted.
As REFORMED, the judgment is AFFIRMED.