Case Information
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627-15
NO. MELANIADAS HEMANNDZ
IN THE COURT OF ERIMINAL APPEALS OF AUSTIN TEXAS REGENED IN MELQUIADEZ HEMANNDEZ COURT OF CRIMINAL APPEALS (AFFELIANT) JUL 222015 . Abel Acosta, Clerk THE STATE OF TEXAS (APPEIIEE) ON APPEAL From the COURT OF APPEALS FIFID DISTRICT OF TEXAS EALSE NO. 05-14-00495-CR
PETITION FOR DISCRETIONARY REVIEW
FILED IN COURT OF CRIMINAL APPEALS (AFFICANT) PRO. SE JUL 242015 Abel Acosta, Clerk MELAUIADEZ HEMANNDEZ TOCT # 1924945 william G. M. GNnew unit. 3001.5. EmiY DriVE. REEVIIC, TEXAS, 78102
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TABLE OF CONTENTS
Table of contents ..... 4 Index of Authorities ..... 31-40 Statement Regarding orat areument ..... statement of the case ..... statement of procedural Histoy ..... Grounds for Review ..... Arecument ..... PRAYer for Relief ..... 11 APPendix ..... 12 certificate of service ..... 13
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INDEX OF AUTHORITIES
LASES
Albro V. STATE SOZ S.W. 2d 715 (Tex. Crim. APP. 1973) - - - - - - - 9 ASECHY V. STATE 813 S.W. 2d 526.529 (Tex. APP. - DAI/AS 1991 PeT. ref'd) - - - II AUSTIN V. United STATES SO9 U.S. 602,113 S.CT. 2801. 125 L. Ed. 2d 488 (1983) - - - - 7 Austran V. state 887 S.W. 2d 31,36 (Tex. Crim. APP. 1994) - - - - 9 LOOPER V. United STATES 386 U.S. 58,62 (1967) - - - 9 DARden V. STATE 430 S. W. 2d 494,496 (Tex. Crim. APP. 1968) - - - - 9 DAVEnforT V. GARCía 834 S.W. 2d 4 (Tex. 1992) - - - 10 Department of Revenue of montana V. RUrth RAnch, 511 U.S. 767,114 s.c. 1937,128 L.Ed. 2d 767 (1994)- - 6
Elores V. STATE 904 S.W. 2d 129,139 n 4 (Tex. Crim. APP. 1995) - - - - 9 FURMAN V. GEORGIA 408 U.S. 238,92 S.C. 2726,33 L. Ed. 2d 346 (1972)- - - - - 10
HARmelin V. michigan SOI U.S. 957,111 S.C. 2680 115 L. Ed. 2d 836 (1991) - - - - 6
*4 HARRIS V. STATE 656 S.W. 2d 481,486 (TeX.Ctim. APP. 1983) - - - - - 9 HUTTO V. DAVIS 454 U.S. 370,102 S.C. 703 (1982) - 5 Johnson V. STATE B6H S.W. 2d 708,725' (Tex.Ctim. APP. DAVIAS 1993) AFF'd. 912 S.W. 2 d 277 (Tex. (tim. APP. 1995) - - - - - 11 People V. Andet 507 6 CAL. 3d 628,493 P. 2 d BBO. 100 CAL. RPTR. 152 (1972) - - - 10 PUGA V. STATE 916 S.W. 2d 47 (TeX.Ctim. APP. SAN Antonio 1996 No Pett) - - - 7 Robinson V. CALIFORNIA 370 U.S. 660,82 S.C. 1417. B L. Ed. 2d 758 (1962) - - - - - 5 RummeII V. STATE 445 U.S. 268,100 S.C. 1133. L2L.Ed. 2d 3821980 - - - - - 5 SolEm V. HELM 463 U.S. 277,103 S.C. 3001 77 L.Ed. 2d. 637 (1983) - - - - - 5 THOMAS V. STATE 916 S.W. 2d 578 (TeX.Ctim. APP. SAN Antonio 1996 No Pett) - - 7 united STATES V. DUNSON 940 F. 2d. 989,995 (68Cit.1991) - - 7 united STATES V. GARCIA 20 F. 3d 670,672(68 (it 1994) - - 7 united STATES V. GRAVSON 438 U.S. 41,98 S.C. 2610 57 L. Ed. 2d 582 (1975) - - - - 5 weems V. United STATES 217 U.S. 349,30 S.C. 594 54 L. Ed. 283 (1910) - - - - - 5
*5 CONSTITUTION PROVISIONS. Eight Amendment to the United States Constitution of America, article I see. 13 of the Texas const. - - - - 4.6 FEDERAL CONST., UNITED STATES CONST. Amends. VIII and XIV - - - - - 3 TEXAS CONSTITUTION art. I § 13 - - - 10 TEXAS CONSTITUTION art. I § 8 - - - 10 United States Constitution Amend I - - 10 United States Const. Amend VIII Id. - - 6 United States const. Amend VIII of. TEXAS CONST. Aft. I § 13 - - - - 9 United States CONST. Amend XIV - - - 9 STATUTES. Tex. Pen. Code Am. 9 21.02 (Vernon 2011) - 3 Tex. Pen. Code Am. 9 21.02 (h) (Vernon 2012) - - - - 8
RULES TEXAS Rules APP. Procedure Rule 43.2 (6) - - - - - - 11 TEXAS Rules APP. Procedure Rule 68.4 - - - - - - 1
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To the Homorade crimengal cover of myperals,
comes now melaviadey Hernandez, appellant PRo.SE, and Respeetfully submits this petition for Biscrertionary Review Pursuant to Texas Rules APn. PRoE. 68.4, URGING error from a Conviction for the offense of continous sexual abuse of a child.
Startement ReGARDING orAL ARGUMENT
Because the complaining witness is a minor, she will be referred to by her initials.
E.R. 2 testified that she, her mother, and her brother moved into an apartment with APPEllunt Hernandez, her mother's boyfriend (RR-4:17-18:20). E.R. 5 Report on a smale bed in the same room as her mother and Hernandez. (RR-4:22). Hernandez began touching her Valina when she was five years old. (RR-4:23-31). E.R. her mother and brother moved to south Dakota for a time but returned to five with Hernandez when E.R. was nine years old. (RR-4:31-32).
When her mother left for work, she told E.R. to Get in bed with Hernandez. (RR-4:33-34). Hernandez to bebed her Valina with his hand, his mouth and his penis. (RR-4:35-38). E.R. said that water came out of his penis and it got all over her. (RR-4:39).
*7 the said it felt like she was covered in stry. (RR-42101). This happened about twice a day.(RR-4240). Hernandez also ticked her vagina which felt disousting. (RR-4240). Hernandez told her he would tifout her insides it she told JoYone. (RR24241). E.R. Told her mother what was happenin G, but her mother did not leave because she defended on Hernandez financialt? (RR-4240, 42-43). At night when E.R.'s man and brother were gone, Hernandez showed her forno gRAPhie videos (RR-4249-49). Between two and five times, Hernandez inserted his penis into her vagina. (RR-42 52-53). He touched her with his hands about 20 times and touched her vagina with his mouth 2 times. (RR-4253). Hernandez gave her money when he touched her. (RR-4258). He told her he loved her and not to tell JoYone. (RR-4258). Hernandez's Penis had hair on it and looked wield. (RR-4295). Twice he tried to put his Penis in her burt. (RR-4299-101). E.R.'s brother testified that E. R. Told him what Hernandez was doing to her when she was five or six years old. (RR-42117). E. R. Also told her mom but, when confronted Hernandex denied it. (RR-42117-116). They moved to South Dakota for about a year, but returned to five with Hernandez. (RR-4231, 60, 72, 119-120). After their return E. R. Told him that Hernandex was abusing her again. (RR-42 119-124). Hernandez treated E. R. differentlY and gave her money. (RR-42440).
*8 STATEMENT OF THE CASE.
Menander was indicted for the first degree below offense of continuous sexual abuse of a child, a violation of Tex. Pen. Code Ann. § 21,02 (Vernon 2011), (CR:7). Despite his plea of not guilty as charged, (Crest, RR-427, RR-55109). The court sentenced him to 60 Years confinement, (CR:60, RR-55129-130). Notice of Appeal was timely filed. (CR:41).
STATEMENT OF PROCEDURAL HISTORY
on April 27, 2015, in the Monorable Court of Appeals fifth District of Texas at Dallas, on Cause No. 05-14-00495-CR. STYled as meduciades menander. V. THE STATE of Texas, was affirmed as modified Before Justices Filmore, mvers, and Evans. Opinion by Justice mvers.
Based on the courts opinion of this date, April 27, 2015, the trial court's judgement is modified as follows:
The section entitled "Emishment assessed by" is modified to show "courts". As modified, we affirm the trial court's judgement.
Under the facts and circumstances of this case, the sentence is unconstitutionally disconstrinable under the federal constitution, U.S. constitution. Amanda. VIII and XIV and under the Texas constitution, Tex. Const. art. I § 13.
The facts do not support a prison sentence of his length.
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The case should be reversed for a new, Punishment hearinG. The Judgement should be returned to reflect that the court rather than the JURY determined the Punishment.
GROUNDS FOR REVIEW
Ground one: Appellants sentence violates his Constitutional Rights Pussuant to the E16bt Amendment to the United States Constitution as the Sentence is Grossly disProportionate to the Crime and also inoPropriate to the offender. Ground Two: Appellants sentence violates his constitutional rights Pussuant to article 1, section 13 of the Texas Constitut ion as the sentence is Grossly disProportionate to the crime and inoPropriate to the offender. Ground three: The Judgement should be returned to reflect that Punishment was assessed by the court rather than the JURY.
*10 ARGUMENT ON GROUND NO. ONE modern Punishment Philosophy is to have, the Punishment fit both the crime and the offender. United STATES V. GRAYSON, 438 U.S. 41, 98 S.C. 2610 ST L. Ed. 2d 582 (1978). EARLY CASES of the United STATES SUPREME COURT considered disRopportunality in the context of what was bafbarous and unknown at English Common Law of for Punishment which went to the nature of the conduct. See weems v. United STATES, 217 U.S. 349, 30 S.C. 544, 54 L. Ed. 793 (1910), (A sentence of crderia Tembrak); Robinson V. CAliotonia, 370 U.S. 660, 82 S.C. 1417, 8 L. Ed. 2d 758 (1962), (ImPISOMment of drvG Addicts). The First CASE to actualY decide a Punishment of "Term of Years" imPIsOMment was Rummell v. ESTelle, 445 U.S. 263,100 S.C. 1133,63 L. Ed 2d 382 (1980). followed by HUTTO V. DAVIS, 454 U.S. 370,102 S.C. 703,70 L. Ed 2d 556 (1982). The United STATES supreme court set forth a discernable ofplicable Test for Proportionality of sentencing when a Term of Years was involved. in solcm v. HELDS, 463 U.S. 277,103 S.C. 3001,77 L. Ed 2d 637 (1983). There the United STATES supreme court stated that there was No Penalty which was Pet se constitutional rather, sentences should be Proportionate to the crime. A Reviewing court should consider three factors to determine constiTutionality of a sentence: 1. The Gravity of the offense and the harshness of the Penalty, 2. the sentence imposed on other criminals in the same jurisdiction, and 3. sentences imposed for the commission of the same crime in other jurisdictions. 463 U.S. at 292.
*11 The court in Salem held that a sentence of mandatory life in Prizamment without Parole for Passing a bad check under a pacidivist statute based on six prior nonviolent convictions violated U.S. CONST. Amend VIII Id. The united STATES SUPPeme court again considered the issue of ProPortionality in NAROACH V. michlCAN: 501 U.S. 957: 111 S.C. 2680: 115 L.dd. 2d 836 (1991). Wherein a michigan statute provided for a sentence of mandatory life in Prizomment without the Possibility of Parole for Possessind more than 650. GRAMs of COGAine. The COURT upheld the sentence on GRounds, that it was not crUel and unusual, but could teach no clear consensus on the issue of dis Pro Portionality. Justice SCAliR and chier Justice REHNAVIST concluded that the 8th Amendment contains no ProPortionality Evavantee. JUSTICE KENNEDY, B'Comnor, and SOUTER found that the 8th Amendment encomPasses a narrow ProPortionality Principle that APPIIes to NON-CAPITAL SENTENCES. JUSTICE WHITE concluded that the 8th Amendment does include a ProPortionality Principle. JUSTICE MARSthal writing SEPentely, agreed with JUSTICE WHITE that the 8th Amendment also in Pases a General ProPortionality Required. JUSTICE STEVENS and BLACKMUN found that the sentence assessed, life without Parole, WAS CHPIicious thereby violating both the cruel and unusual provision of the 8th Amendment and, by inference, any "Pro Portionality" requirement. Thus, by a vote of 7.2, ProPortionality Survives as a viable constitutional Tenet of the 8th Amendment. The same court has seeg fit to discuss the matter more obliavely in other circumstances. See Department of Revenue of montana V. KUARth Ranch, 5th U.S. 767: 114 S.C. 1937: 128 L.dd 2d 767 (1994).
*12 (a tax on illegal activities is subject to analysis under the 5th Amendment for successive punishment; Austin V. united startes, 509 U.S. 602,113 S. et. 2801, 125 L. Ed. 488 (1993). Civil in remforfeiture is subject to an excessive fines: Argument under the 8th Amendment, Elearly the united startes supreme court has not yet rendered it's final decision on disproportionality. See united startes V. GARCik, 20 f. 3 d. 670,672 (6th eit. 1994), (a 262 month (21.8), for conspiracy with intent to distribute several hundred pounds of markiturna was not disproportionate); United States, V. Bunsen, 940 f. 2 d. 989, 995 (6th cit. 1991), (a 20 Year sentence for possession with intent to distribute 7 kilos of cocaine was not disproportionate). Coneress sought, Proportionality in sentenצות's through a system that imposes appropriately different sentences for criminal conduct of different severity. The SAN Antonio court of Appeals has clearly recognized that disproportionality in sentenצות's is a viable concept under the federal constitution. In PUGA V. STATE, 916 S.W. 2 d 47, (Tex. APP.-SAN Antonio 1996 No PST.), and Thomas V. STATE, 916 S.W. 2 d 578 (Tex. APP.-SAN Antonio 1996 No PST.). The SAN Antonio court of Appeals recognized that the 8th Amendment contains a narrow Proportionality principle. Though the court refuses to garant relief in cibber case, the PUGA and Thomas opinions are the most Recent and recent statements on the concept, and elearly indicate acceptance of this doctrine of federal law in the Texas Courts. Appellant urges this court to apply the federal doctrine of disproportionality.
*13 At the time of trial, Hernandez was 33 - Years old (RR-5:127-128). When Hernandez Testified at the Punishment Phase, he denied L.R. o accusations. (RR-5:125). He said that L.A. knows how to ruin lives (RR-5:125). Hergandez had never been convicted of his offense in Texas or Any other state.
During Argument the Prosecutor Arewed that this sentence should of warranted a life sentence. (RR-5:129). She arewed that Anythin's less than 30 Years was a completeinjustice (RR-5:129). The covet sentenced APRICANT to 60 Years-dovble the PRA BANEmin offer made prior to trial for a lesser included offense (RR-3:4-5, RR-5:129-130). The minimum sentence for this offense is 25 Years. See TEX. PEN. Lode ANN. 621.02 (h), (vernon 2011). With the sentence which was Given to Hernandez, he must serve dAY for dAY. Hernandez will not be elieible for until he is 93 Years old. Hernandez will in the essence be serving a life sentence. Based on the Evidence presented, Hernandez's Punishment was severe. The facts and circumstances of the case warranted that he be given a lighter sentence.
Therefore, under the Record in this case the sentence is dis proportionate. APRellant is entitled to a reversal and to a new Punishment heaping.
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ARGUMENT ON GROUND NO. TWO
The Texas leGislative traditionally seen fit to set a wide range of punishment for many crimes. APPEllant is also Eobnizant that, as long as the Punishment, assessed is within the Range established by the leGislative, Texas, conerts have traditionally held that the Punishment assessed does not violate the constitutional Prohibitions Against cruel and unusual Punishment, under cibhter U.S. LonsT. Amend. VIII of Tex. LonsT. att. I $ 13. TABLIS V. STATE. 656 S.W. 2d 481.486 (Tex. Crim. APP. 1983). see also Mbleo V. STATE. 502 S.W. 2d 715 (Tex. Crim. APP. 1973), DAUden V. STATE. 430 S.W. 2d 494.496 (Tes. Crim. APP. 1969). This does not indicate however that the Punishment assessed cannot be Grossly disproportionate to the crime, cibhter because the Punishment does not fit the severity of the crime, the offender, or both. This Hounable court of Cerminal appEALS should at least, recognize that the Texas constitution contains a ProPortionality Principe. This court should then proceed to hold that Appelunt's Sentence is unconstitutionally dis ProPortionate under the Texas constitution. The Texas constitution may provide Greeter protection for it's own citizens, but it certainly cannot provide less, to do so would be a violation of due process law. U.S. Const. Amend XIV. see cooper v.united States. 386 U.S. 58.62 (1967), FOKES V. STATE. 904 S.W. 2d 149.139 r. 4 (Tex. Crim. APP. 1995), AUtEAN V. STATE. 887 S.W. 2d 31.36 (Tex. Crim. APP. 1994).
*15 Indeed, the very language utilized by TEX. Const. art. I $ 13 indicates that the Texas construction provides different, and arevable Greater Protection than does the Federal construction. OF interest is the case of People V. Anderson. &;. CAL. 3d 628.493 P. 2d 880.100 CAL. RPTK. 152(1972). A California case which held the death Penalty unconstitutional under the California construction at a time when EVRDMAN V. CooREia. 408 U.S. 238.92 S.C. 2726.33 L. Ed. 2d 346 (1972). WAS Pendine before the united STATES SUPPeme COURT. The COURT concluded that, it WAS the intent of the framers of the California construction to our law both: cruel and unusual Punishments, Not merely Punishments that were cruel and unusual combined. The COURT also found that issues of constitutionality had to be "Probe(d). on the basis of the disloDesive cruel or unusual Punishment." APPEllant Respectfully asks this court to direct their attention to Davonport V. CoRcia. 834 S.W. 2d 4 (Tex. 1992). Where The Texas supreme court, in decidin 6 that Tex. const. art. I $ 8 CAve broader Protection to free speech than did U.S. const. Amend. I, set forth a Scholarly and well-reasoned opinion concerning the nature of the Texas construction. APPEllant has the right to have this Honorable Court of CRImSmal APPEALS recaenixe the CONSTITUTIONAL validity of his claim, even if this court still finds that, fractually, the sentence is not disPRoPATIONATE to the crime. Additionaly APPEllant has a right to a full Analysis of his claim of disPRoPATIONality under the Texas constituation.
*16 In Dobnson U. STATE, 864 S.W. 2d 708.725 (Tex. APP. DARINS 1993), off'd 912 S.W. 2d 277 (Tex. GYim. APP. 1995). the DARINS COURT of APPeals found that Prison sentences are subject to a ProPertionality analysis under the Amendment.
ARGUMENT ON GROUND NO. THREE This COURT MAY, modify the trial court's Judgement to correct errors. See Asberty U. STATE, 813 S.W. 2d 526.529 (Tex. APP. DARINS 1991 Fet. tef'd), Tex. Rules APP. Proc. 43.2 (b). The JudGement indicates that Punishment was assessed by the SURY (CR. 45).
PRAYER wherefore Premises considered. APPERant PRRVs that his conviction will be revessed and commanded for a new Punishment hearing. Further, APPEIant PRRVs that the Judgement will be retormed to reflect that the COURT rather than the SURY assessed Punishment.
RespectivHY Submitted.
Mellaviadez MerRANdeZ TDES * 01924943 william G. m. Gannell unit 3001 S. Emily Drive. Beevine, Texas. 75102
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AFFIRMED as Modified; Opinion Filed April 27, 2015.
In The Court of Appeals fifth District of Eexas at Ballas
No. 05-14-00495-CR
MELQUIADES HERNANDEZ, Appellant V.
THE STATE OF TEXAS, Appellee
On Appeal from the Criminal District Court No. 1 Dallas County, Texas Trial Court Cause No. F13-55932-H
MEMORANDUM OPINION
Before Justices Fillmore, Myers, and Evans Opinion by Justice Myers A jury convicted Melquiades Hernandez of continuous sexual abuse of a young child. See Tex. Penal Code Ann. § 21.02(b) (West Supp. 2014). The trial court assessed punishment at sixty years' imprisonment. In three issues, appellant contends the sentence violates the United States and Texas Constitutions and the judgment should be modified to show the trial court assessed the punishment. We modify the trial court's judgment and affirm as modified.
DISPROPORTIONATE SENTENCE
In his first two issues, appellant contends the sentence is grossly disproportionate to the offense and inappropriate to the offender, in violation of the United States and Texas
*18 Constitutions. See U.S. CONST. amend. VIII; TEX. CONST. art. I, § 13. Appellant asserts he denied the complainant's accusations during the punishment phase, and the sentence is too severe given the fact that it is more than twice the minimum number of years for the offense. The State responds that appellant failed to preserve his complaint for appellate review and alternatively, the trial court properly exercised its discretion in sentencing appellant in this case.
To preserve error for appellate review, the record must show appellant made a timely request, objection, or motion. See TEX. R. APP. P. 33.1(a)(1). Constitutional rights, including the right to be free from cruel and unusual punishment, may be waived Rhoades v. State, 934 S.W.2d 113, 120 (Tex. Crim. App. 1996). Appellant made no objection when he was sentenced, and his motion for new trial did not address this complaint. Accordingly, he has not preserved the issue for appellate review. See Castaneda v. State, 135 S.W.3d 719, 723 (Tex. App.—Dallas 2003, no pet.).
Moreover, punishment that is assessed within the statutory range for an offense is neither excessive nor unconstitutionally cruel or unusual. Kirk v. State, 949 S.W.2d 769, 772 (Tex. App.—Dallas 1997, pet. ref'd); see also Jackson v. State, 680 S.W.2d 809, 814 (Tex. Crim. App. 1984). The punishment range for the offense of continuous sexual abuse of a young child is imprisonment for life or for any term not more than ninety-nine years nor less than twenty-five years, and an optional fine up to . See TEX. PEN. CODE ANN. §§ 12.32, 21.02(h) (West 2011 & Supp. 2014). Appellant's sixty-year sentence is within the statutory range. We overrule appellant's first and second issues.
MODIFY JUDGMENT
In his third issue, appellant asks us to modify the trial court's judgment to show the trial court assessed the punishment instead of the jury. The State agrees the judgment should be
*19 modified as appellant requests. The judgment incorrectly states the jury assessed punishment. We sustain appellant's second issue.
We modify the trial court's judgment to show that punishment was assessed by the court. See Tex. R. App. P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27-28 (Tex. Crim. App. 1993); Asherry v. State, 813 S.W.2d 526, 529-30 (Tex. App.—Dallas 1991, pet. ref'd).
As modified, we affirm the trial court's judgment.
Lana Myers/ LANA MYERS JUSTICE
Do Not Publish Tex. R. App. P. 47 140495F.U05
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Court of Appeals
Fifth District of Texas at Ballas
JUDGMENT
MELQUIADES HERNANDEZ, Appellant
No. 05-14-00495-CR V.
THE STATE OF TEXAS, Appellee
Appeal from the Criminal District Court No. 1 of Dallas County, Texas (Tr.Ct.No. F13-55932-H). Opinion delivered by Justice Myers, Justices Fillmore and Evans participating.
Based on the Court's opinion of this date, the trial court's judgment is MODIFIED as follows:
The section entitled "Punishment Assessed by" is modified to show "Court." As modified, we AFFIRM the trial court's judgment.
Judgment entered this 27th Day of April, 2015.
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CERTIFICATE OF SERVILE
I hereby certify that a copy of the foreboin G PETITION for DISCREtionary REVIEW, has been served through United STATES BOSTAL MAiL Service to: THE STATE PROSECUTING ATtorney, P.O. Box 12405 , Austin, Texas. 78711 and to Susan Hawk, Actine chict of the Appellate section of the DAIHAS COUNYY CRIMINAL DISTRIET ATtorney's oFeICE, Frank CRowly counts Building, 133 North Rivertiont Blvd. L B 19, DAIHAS. Texas 75207 on July 21 of 2015.
a Meloniodes Hernandez
meloviodes Hernandez TDEG William G. Ganell unit 3001 S. Emily Drive Beeville, Texas. 78102