ISAC BLANCO HERNANDEZ v. THE STATE OF TEXAS (2012)

MEMORANDUM OPINION

Opinion By Justice Lang

Isac Blanco–Hernandez ¹ appeals the trial court's judgment assessing a sentence of life imprisonment following a plea of guilty to a murder charge.   In his sole issue, he argues the trial court abused its discretion when it considered his mental illness as an aggravating factor during the sentencing hearing.   We decide appellant's issue against him and affirm the trial court's judgment.

I. FACTUAL AND PROCEDURAL BACKGROUND

Appellant was indicted for murder.   He waived his right to a jury trial and entered a plea of guilty.   The court's written admonishment to appellant stated “[t]he punishment range for the offense charged is:  1 st Degree Felony, 5—99 years or Life․”  Appellant and his counsel signed the written admonishment.

At the trial court's sentencing hearing, the judge considered the presentence report, a transcript of appellant's statement to police, crime-scene photographs, the victim's autopsy report, testimony from two of the victim's family members, and appellant's mental-health records.   After hearing all the evidence as well as closing arguments from both sides, the judge stated on the record, “After reviewing those mental health records, while many times a severe mental illness might be mitigating, ․ I find the mental illness to be an aggravating factor in setting the punishment.”   Then, the judge found appellant guilty and sentenced him to life imprisonment.   Immediately thereafter, the judge asked:  “Is there any reason in law why I shouldn't pass sentence?”   Appellant's counsel responded:  “No legal reason, Judge.”   This appeal followed.

II. ABUSE OF DISCRETION IN CONSIDERING MENTAL ILLNESS AS AN AGGRAVATING FACTOR IN SENTENCING

In his sole issue, appellant argues the trial court abused its discretion when it considered evidence of his mental illness as an aggravating, as opposed to mitigating, factor during his sentencing hearing.   The State responds that appellant failed to preserve his issue for appellate review.   The State also responds the trial court did not abuse its discretion in considering appellant's mental illness as an aggravating factor instead of a mitigating factor when imposing the criminal sentence.

A. Standard of Review and Applicable Law

In order to preserve an issue for appeal, a party must present to the trial court a timely request, motion, or objection, state the specific grounds therefore, and obtain a ruling that appears in the record.   See Tex.R.App. P. 33.1(a).   Where a party does not object to a court's ruling when it is announced or raise the complaint in a post-trial motion, the party has not preserved the issue for appellate review.   See id.;   see Kirkpatrick v. Memorial Hosp. of Garland, 862 S.W.2d 762, 769 (Tex.App.—Dallas 1993, pet. denied).

Article 37.07, § 3(a) of the Code of Criminal Procedure describes the breadth of evidence a judge may consider during the punishment phase of a non-capital case.   It states, in pertinent part, after a defendant is found guilty, “[r]egardless of the plea and whether the punishment be assessed by the judge or the jury, evidence may be offered by the state and the defendant as to any matter the court deems relevant to sentencing ․”  Tex.Code Crim. Proc. Ann. art. 37.07, § 3(a)(1) (West 2006 & Supp.2011) (emphasis added).   A judge's decision to admit evidence he deems relevant to sentencing is reviewed on an abuse-of-discretion basis.  Huggins v. State, 795 S.W.2d 909, 911 (Tex.App.—Beaumont 1990, pet. ref'd);  see Grunsfeld v. State, 813 S.W.2d 158, 164 (Tex.App.—Dallas 1991), aff'd in part, rev'd in part, 843 S.W.2d 521 (Tex.Crim.App.1992), superseded by Act of Sept. 1, 1994, 73rd Leg., R.S., ch. 900, § 5.05, 1993 Tex. Gen. Laws 3586, 3759.  “The sentencing process consists of weighing mitigating and aggravating factors, and making adjustments in the severity of the sentence consistent with this calculus.”  Milburn v. State, 15 S.W.3d 267, 270 (Tex.App.—Houston [14th Dist.] 2000, pet. ref'd).

B. Application of Law to Facts

Appellant did not object when the judge said he found the mental illness to be an aggravating factor when it was announced, nor did appellant file a post-trial motion to raise the complaint before

the trial court.²  Accordingly, appellant failed to preserve his complaint for appellate review.   See Tex.R.App. P. 33.1(a);  Kirkpatrick, 862 S.W.2d at 769.

Even had appellant preserved his issue for appeal, we conclude the trial court did not abuse its discretion because it may properly consider evidence of mental illness as either mitigating or aggravating factors.   Appellant cites Tennard v. Dretke, 542 U.S. 274 (2004), and Bigby v. Dretke, 402 F.3d 551 (5th Cir.2005), for the proposition that because evidence of mental illness is inherently mitigating, a trial court abuses its discretion by using such evidence as an aggravating factor in assessing punishment.   We cannot agree with appellant that these two cases stand for this proposition.

In Tennard, a defendant was convicted by a jury of capital murder.  542 U.S. at 276.   During the penalty phase of the trial, the defense called a witness who testified that the defendant had a low IQ. Id. at 277.   The jury was instructed to consider the appropriate punishment by answering two “special issues” to establish whether a sentence of life imprisonment or death would be imposed.  Id. During closing argument, the defense argued that the defendant's low IQ mitigated his culpability.  Id. at 277–78.   The prosecution said such evidence was irrelevant.  Id. at 278.   The jury sentenced the defendant to death.  Id. On appeal, the defendant argued his low IQ was mitigating and the jury was not properly instructed on how to “consider and give effect to” this evidence in assessing punishment.  Id. at 279–80.   The Supreme Court agreed with the defendant and reversed and remanded, noting “impaired intellectual functioning is inherently mitigating” and holding that “reasonable jurists could conclude that the low IQ [defendant] presented was relevant mitigating evidence.”  Id. at 287–89.

In Bigby, a defendant was convicted of murder and sentenced to death.   402 F.3d at 557.   The defendant appealed, claiming among other things, that the jury instructions prevented the jury from acting upon mitigating evidence submitted in his behalf.  Id. at 556.   Following the Supreme Court's Tennard precedent, the 5th Circuit concluded that the evidence of the defendant's mental illness was “relevant mitigating evidence that [defendant] must be allowed to present to the jury,” affirmed the conviction, and remanded for new sentencing, noting “the contested jury instructions stripped the jury of a vehicle for expressing its ‘reasoned moral response’ to the appropriateness of the death penalty.”  Id. at 567, 575.

As an initial point, we observe Tennard and Bigby are death penalty cases that address whether evidence of mental illness is mitigating in the context of special issues submitted to a jury.   This case is not a capital case nor does it implicate special issues.   Even setting aside those distinctions, we cannot say Tennard or Bigby stand for the proposition that because evidence of mental illness is “inherently” mitigating, a trial court abuses its discretion by using that evidence as an aggravating factor in assessing punishment.

Further, the Court of Criminal Appeals has already considered and decided against appellant's argument that evidence of mental illness is mitigating as a matter of law in the context of capital murder cases.  Mays v. State, 318 S.W.3d 368, 393–94 (Tex.Crim.App.2010) (rejecting defendant's argument that “mental illness and its effects upon one's conduct are, as a matter of law, mitigating and can never be considered as rendering a person more likely to commit acts of violence”).   In Mays v. State, the Court of Criminal Appeals noted “[m]ental illness ․ is not mandatorily mitigating, although it is evidence that the jury must be able to consider and give effect to as it deems appropriate.”  Id. at 394.   We conclude the trial court did not abuse its discretion in considering evidence of appellant's mental illness as an aggravating factor in assessing punishment.   See Milburn, 15 S.W.3d at 270;  Huggins, 795 S.W.2d at 911.   We decide appellant's sole issue against him.

III. CONCLUSION

We conclude the trial court did not abuse its discretion.   The trial court's judgment is affirmed.

S

Court of AppealsFifth District of Texas at DallasJUDGMENT

ISAC BLANCO–HERNANDEZ, Appellant

No. 05–11–00419–CR V.

THE STATE OF TEXAS, AppelleeAppeal from the Criminal District Court No. 1 of Dallas County, Texas.  (Tr.Ct.No.F06–14162–H).

Opinion delivered by Justice Lang, Justices Bridges and Francis participating.

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

Judgment entered July 10, 2012.

/Douglas S. Lang/

DOUGLAS S. LANG

JUSTICE

FOOTNOTES

FN1. Appellant's surname is spelled differently throughout the clerk's record:  “Hernandez,” “Blanco Hernandez,” Blanco–Hernandez,” and “BlancoHernandez.”   Sometimes his name includes a middle initial “B.” We refer to the individual as “appellant” throughout this opinion..  FN1. Appellant's surname is spelled differently throughout the clerk's record:  “Hernandez,” “Blanco Hernandez,” Blanco–Hernandez,” and “BlancoHernandez.”   Sometimes his name includes a middle initial “B.” We refer to the individual as “appellant” throughout this opinion.

FN2. Appellant did file a motion for new trial, but stated only that “the verdict is contrary to the law and evidence.”   We conclude the motion did not state “with sufficient specificity to make the trial court aware of the complaint.”  Tex.R.App. P. 33.1(a)..  FN2. Appellant did file a motion for new trial, but stated only that “the verdict is contrary to the law and evidence.”   We conclude the motion did not state “with sufficient specificity to make the trial court aware of the complaint.”  Tex.R.App. P. 33.1(a).

DOUGLAS S. LANG JUSTICE