Opinion
NO. 03-19-00435-CR
08-13-2020
Justin Michael Shaw, Appellant v. The State of Texas, Appellee
FROM THE 368TH DISTRICT COURT OF WILLIAMSON COUNTY
NO. 16-2521-K368 , THE HONORABLE RICK J. KENNON, JUDGE PRESIDING MEMORANDUM OPINION
A jury convicted Justin Michael Shaw for four counts of second-degree felony sexual assault of a child and assessed punishment at twenty years' imprisonment for each count. See Tex. Penal Code §§ 12.33, 22.011(a)(2)(A), (B), (f). The district court rendered judgments of conviction on the jury's verdict and ordered that the sentences for Counts One and Two run consecutively, the sentences for Counts Two and Three run concurrently, and the sentence for Count Four run concurrently with Counts Two and Count Three. See id. § 3.03(b)(2)(A). In two issues, Shaw contends that his sentence is grossly disproportionate to the crimes committed and therefore cruel and unusual punishment, and that the evidence was legally insufficient to support his sentence. We will modify the judgments of conviction to reflect the correct "Statute for Offense" and the correct "Date Sentence Commences" and affirm the judgments as modified.
BACKGROUND
Because the parties are familiar with the facts of this case and because Shaw presents no challenge to the sufficiency of the evidence supporting his conviction, we do not recite the facts in great detail. See Tex. R. App. P. 47.1.
Shaw's indictment charged him with four counts of sexual assault of a child, A.B., involving one act of causing penetration of A.B.'s mouth by his sexual organ and three separate acts of penetration of A.B.'s sexual organ, two by using his fingers and one with a "wand massager." See Tex. Penal Code § 22.01(a)(2)(A) (defining sexual assault as causing penetration of child's sexual organ by any means), (B) (defining sexual assault as causing penetration of child's mouth by defendant's sexual organ). Evidence at trial showed that Shaw committed the charged offenses against A.B., his ex-wife's daughter, over a five-year period. The offenses began in 2011, when Shaw was dating A.B.'s mother and when A.B. was ten years old, and continued until A.B. was fifteen. In 2016, A.B. told her mother that Shaw had been sexually abusing her since she was ten. An audio recording admitted into evidence contained Shaw's detailed admissions to his ex-wife about his sex acts with A.B.
The jury convicted Shaw as charged. Trial proceeded to punishment, during which the jury heard testimony from A.B.'s counselor and A.B.'s mother about the effects of Shaw's sexual abuse, including that A.B. is "delayed emotionally," has increased vulnerability to more sexual abuse, struggles behaviorally, and will likely have problematic relationships with men for the rest of her life. The jury also heard testimony from Shaw's mother, stepmother, father, grandmother, girlfriend, and a Bible-study friend as to Shaw's good character. After hearing this evidence, the jury assessed punishment, and the district court rendered judgments of conviction consistent with the jury's verdict. This appeal followed.
DISCUSSION
Eighth Amendment disproportionate-sentence issue not preserved
In his first issue, Shaw contends that his sentence is grossly disproportionate to the crimes committed. See U.S. Const. amends. VIII, XIV. The Eighth Amendment to the United States Constitution provides that "[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishment inflicted." Id. amend. VIII; see Robinson v. California, 370 U.S. 660, 675 (1962); Meadoux v. State, 325 S.W.3d 189, 193 (Tex. Crim. App. 2010).
"A sentencing issue may be preserved by objecting at the punishment hearing, or when the sentence is pronounced." Burt v. State, 396 S.W.3d 574, 577 (Tex. Crim. App. 2013). Failure to complain about an allegedly disproportionate sentence in the trial court forfeits the error on appeal. See, e.g., Rhoades v. State, 934 S.W.2d 113, 120 (Tex. Crim. App. 1996) (concluding that defendant failed to present complaint that his sentence violated Texas Constitution's protection against cruel or unusual punishment); Curry v. State, 910 S.W.2d 490, 497 (Tex. Crim. App. 1995) (concluding that Eighth Amendment complaints are forfeited if not raised in trial court); Williams v. State, 191 S.W.3d 242, 262 (Tex. App.—Austin 2006, no pet.) (noting that "[c]laims of cruel and unusual punishment must be presented in a timely manner" or are "waived"); see also Tex. R. App. P. 33.1(a) (addressing preservation of error generally).
Here, as the State correctly notes, Shaw failed to present any complaint about his sentence during the punishment phase of trial when he was sentenced. Accordingly, we conclude that this issue was not preserved for our review. See Tex. R. App. P. 33.1(a). We overrule Shaw's first issue.
Sufficiency of evidence to support sentence
In his second issue, Shaw challenges the legal sufficiency of the evidence supporting his sentence, contending that his sentences "seem[ed] unfair" given his negligible criminal history—a misdemeanor marihuana offense—and witness testimony about his good character. However, as the Court of Criminal Appeals has explained,
[T]he task of setting a particular length of confinement within the prescribed range of punishment is essentially a "normative" judgment. Aside from a few specific instances where the range of punishment depends upon the determination of discrete facts, "[d]eciding what punishment to assess is a normative process, not intrinsically factbound." Indeed, we have described the sentencer's discretion to impose any punishment within the prescribed range to be essentially "unfettered." Subject only to a very limited, "exceedingly rare," and somewhat amorphous Eighth Amendment gross-disproportionality review, a punishment that falls within the legislatively prescribed range, and that is based upon the sentencer's informed normative judgment, is unassailable on appeal.Ex parte Chavez, 213 S.W.3d 320, 323-24 (Tex. Crim. App. 2006) (internal citations omitted) (emphases added). Shaw's sentences are not subject to an evidentiary sufficiency review. Moreover, Shaw acknowledges that generally a sentence will not be disturbed when, as here, it is within the statutorily prescribed range. See Nunez v. State, 565 S.W.2d 536, 538 (Tex. Crim. App. 1978).
Further, this case is not one in which no evidence could have supported the punishment decision, thereby implicating Shaw's due course of law protections. See Jackson v. State, 680 S.W.2d 809, 814 (Tex. Crim. App. 1984); see also Tex. Const. art. I, § 19 (due course of law provision in Texas Constitution); Tex. Code Crim. Proc. art. 1.04 (addressing due course of law). "[A] sentence that is within the legislatively prescribed range, based upon the sentencer's informed normative judgment, and in accordance with due process of law 'is not subject to a sufficiency of the evidence review on appeal.'" Parker v. State, 462 S.W.3d 559, 566 (Tex. App.—Houston [14th Dist.] 2015, no pet.) (quoting Jarvis v. State, 315 S.W.3d 158, 162 (Tex. App.—Beaumont 2010, no pet.)).
Here, the record reflects that Shaw's sentence for each count is within the permissible statutory range for the second-degree felony offense of sexual assault of a child. See Tex. Penal Code §§ 12.33(a) (establishing punishment range of two to twenty years for second-degree felony), 22.011(f) (providing that offense of sexual assault is second-degree felony except under certain circumstances not present here). The sentence for each of those counts is within the legislatively prescribed range and is not subject to appellate review for evidentiary sufficiency. See Parker, 462 S.W.3d at 566; Jarvis, 315 S.W.3d at 162; see also Ex parte Chavez, 213 S.W.3d at 323-24; Garcia, 316 S.W.2d at 735. Moreover, due course of law protections were not implicated here because the jury was presented with substantial evidence on which they could have relied when assessing punishment, including testimony from A.B.'s counselor and A.B.'s mother. Cf. Jackson, 680 S.W.2d at 814. Accordingly, we overrule Shaw's second issue.
Clerical errors in judgments of conviction
Our review of the record shows some non-reversible, clerical errors in the judgments of conviction. All the judgments reflect that the "Statute for Offense" is "21.01(a)(2)(B) Penal Code," but section 21.01 only provides statutory definitions relating to sexual offenses under Chapter 21 of the Penal Code. See Tex. Penal Code § 21.01. The correct statutes for the offenses with which Shaw was charged and convicted are subsections 22.011(a)(2)(A) and 22.011(a)(2)(B) of the Penal Code, which define the offenses of sexual assault of a child as charged against Shaw in this case. See id. § 22.011(a)(2)(A), (B). Shaw's judgment of conviction for Count Four contains an additional error, reflecting that the "Date Sentence Commences" is "5/27/19." However, Shaw was sentenced on June 27, 2019, and received jail-time credit of two days.
We have authority to modify incorrect judgments when the necessary information is available to do so. See Tex. R. App. P. 43.2(b) (authorizing court of appeals to modify trial court's judgment and affirm it as modified); Bigley v. State, 865 S.W.2d 26, 27-28 (Tex. Crim. App. 1993) (concluding that rules of appellate procedure empower courts of appeals to reform judgments). Accordingly, we modify the district court's judgment of conviction for Count One to reflect that the "Statute for Offense" is "22.011(a)(2)(B)," modify the judgments of conviction for Count Two, Count Three, and Count Four to reflect that the "Statute for Offense" is "22.011(a)(2)(A)," and further modify the judgment of conviction for Count Four to reflect that the "Date Sentence Commences" is "6/27/19."
CONCLUSION
We affirm the judgments of conviction as modified.
/s/_________
Gisela D. Triana, Justice Before Chief Justice Rose, Justices Baker and Triana Modified, and as Modified, Affirmed Filed: August 13, 2020