Vincent Orisbel Barrera, Appellant, v. The State of Texas, Appellee. (2016)

MEMORANDUM OPINION

Following a bench trial, the trial court found appellant Vincent Barrera guilty of tampering with evidence and sentenced him to forty years in prison as a habitual felony offender.  See Tex. Penal Code Ann. § 37.09(c) (West, Westlaw through 2015 R.S.);  see also id. § 12.42(d) (West, Westlaw through 2015 R.S.).  By one issue, Barrera contends that his forty-year sentence constitutes cruel and unusual punishment under the Eighth Amendment.  See U.S. Const. amend.  VIII. We affirm.¹

I. Cruel and Unusual Punishment

As a general rule, a punishment falling within the applicable range prescribed by the legislature is not excessive, cruel or unusual under the Eighth Amendment, and will not be disturbed on appeal.  See Ex parte Chavez, 213 S.W.3d 320 (Tex.Crim.App.2006);  Trevino v. State, 174 S.W.3d 925, 928 (Tex.App.–Corpus Christi 2005, pet. ref'd) (citing Harris v. State, 656 S.W.2d 481, 486 (Tex.Crim.App.1983) (en banc);  Jordan v. State, 495 S.W.2d 949, 952 (Tex.Crim.App.1973);  Samuel v. State, 477 S.W.2d 611, 614 (Tex.Crim.App.1972)).  We review the trial court's punishment decision under an abuse of discretion standard.  See Jackson v. State, 680 S.W.2d 809, 814 (Tex.Crim.App.1984) (en banc).

Under the Texas Penal Code, tampering with evidence is a third-degree felony.  See T ex.  Penal Code Ann. § 37.09(c).  However, if it is shown at the trial of a third-degree felony that a defendant has been twice before convicted of a felony offense, on conviction he shall be punished by imprisonment for life or a term of not more than ninety-nine years or less than twenty-five years.  Id. at § 12.42(d).  In this case, Barrera was convicted of tampering with evidence, a third-degree felony, and was found to have had four prior felony convictions.  Thus, Barrera's forty-year sentence was in the mid-range for a habitual felony offender convicted of a third-degree offense.  See id.  Following the general rule, we conclude that because Barrera's punishment fell within the applicable range prescribed by the legislature, it is not excessive, cruel or unusual.  Trevino, 174 S.W.3d at 928;  Harris, 656 S.W.2d at 486;  Jordan, 495 S.W.2d at 952;  Samuel, 477 S.W.2d at 614.

Nonetheless, relying on Solem v. Helm, Barrera argues that his forty-year sentence is “simply too high” for the offense of tampering with evidence—a crime which he characterizes as “non-violent.”  463 U.S. 277 (1983).  In Solem, the United States Supreme Court set out three factors to evaluate the proportionality of a sentence:  (1) the gravity of the offense and the harshness of the penalty;  (2) the sentences imposed on other criminals in the same jurisdiction;  and (3) the sentences imposed for the commission of the same crime in other jurisdictions.  Id. at 292.  The Supreme Court reexamined the Solem test in Harmelin v. Michigan, 501 U.S. 947 (1991), but it is unclear from Harmelin whether the Solem proportionality test survived.  See Sullivan v. State, 975 S.W.2d 755, 757 (Tex.App.–Corpus Christi 1998, no pet.).  Assuming arguendo the viability of the Solem factors, we note that application of the Solem test has been modified by Texas courts and the United States Fifth Circuit Court of Appeals since Harmelin to require a threshold determination that the defendant's sentence is grossly disproportionate to the crime before addressing the last two Solem factors.  See McGruder v. Puckett, 954 F.2d 313, 316 (5th Cir.1992);  see also Jackson v. State, 989 S.W.2d 842, 845–46 (Tex.App.–Texarkana 1999, no pet.);  Sullivan, 975 S.W.2d at 757.

In determining whether Barrera's forty-year sentence is grossly disproportionate, we are guided by the United State Supreme Court's holding in Rummel v. Estelle.  445 U.S. 263 (1980).  In Rummel, a defendant was sentenced to mandatory life in prison under a prior version of the Texas habitual felony offender statute for obtaining $120.75 by false pretenses.  Id. at 266.  The life sentence was imposed because the defendant had two prior felony convictions—one for fraudulent use of a credit card to obtain $80 worth of goods or services and the other for possessing a forged check in the amount of $28.36.  Id. In assessing the proportionality of the defendant's life sentence, the Supreme Court observed that Texas' interest in the defendant's life sentence was not simply to make theft by false pretense criminal, but to punish more severely “those who by repeated criminal acts have shown that they are simply incapable of conforming to the norms of society as established by its criminal law” and as expressed by Texas' habitual felony offender statute.  Id. at 276.  Thus, the Supreme Court held that the defendant's life sentence was not grossly disproportionate to the crime.  Id. at 285.

In this case, the trial court admitted into evidence State's Exhibit 88 without objection.  This Exhibit, entitled “Prior Criminal Record,” listed the following crimes committed by Barrera over a sixteen-year period:

May 3, 1998 Burglary of a Building and Criminal Mischief

November 22, 1998 Burglary of a Building

March 30, 1999 Indecency with a Child

March 31, 2003 Burglary of a Building (two counts) and Habitation (one count)

November 10, 2004 Failure to Register as a Sex Offender

December 13, 2004 Possession of Aerosol Paint with Intent to Inhale

July 30, 2007 Driving While Intoxicated

March 21, 2008 Theft by Check

April 5, 2008 Evading Arrest

February 17, 2009 Evading Arrest

February 22, 2009 Resisting Arrest

September 12, 2010 Driving While License Invalid

November 18, 2010 Assault Family Violence

January 6, 2012 Theft of Stolen Property by Check

February 28, 2012 Failure to Register as a Sex Offender

May 21, 2012 Theft of Stolen Property and Failure to Identify as a Fugitive from Justice

August 27, 2012 Failure to Identify as a Fugitive with Intent to Give False Information

May 10, 2013 Driving While License Invalid

July 24, 2014 Tampering with Evidence

At his punishment hearing, the prosecutor summarized Barrera's criminal history without objection as follows:

Prosecutor:  [Barrera] went to [prison] on [March 31, 2000].  That was for a number of burglaries and for molesting his six-year-old stepbrother.  He got out when he was 18 [years old], which would be around [2002, 2003], and immediately started committing additional crimes.  He went back to prison on [April 7, 2005] after he got a bunch of probations [revoked].  Not long after he got out of prison for that, he goes back to prison on [June 6, 2013] and the records will show that he gets out of prison on [March 20, 2014], so he was only out of prison four months before he commits [tampering with evidence] as well and also, Judge, when you go through these, when he committed the indecency with a child and the burglary of a building, he was on probation for two other felonies at the time.  Then after he's out, he's convicted of ․ possession of paint.  He's on three, he's on three ten-year deferred adjudications when he commits that crime.  Then he fails to register as a sex offender while he's on ten-year deferred [adjudication] for all of those crimes.

․

[Barrera] was 29 [years old] when he committed [tampering with evidence] and he had spent most of his life in [prison] and when he wasn't out ․ he was committing crimes and crimes that are pretty sufficient.  He's huffing paint.  There's one of them, Judge, where he beat the mother of his children or he assaulted the mother of his children[.]

Trial Court:  [D]ue to the extent of [Barrera's] criminal history, the Court is assessing a punishment in the amount of 40 years.

Considering Barrera's extensive criminal history and predilection for recidivism as a habitual felony offender, the trial court reasonably determined that his forty-year sentence was necessary to punish more severely a person who, by his repeated criminal acts over a sixteen-year period, was shown to be simply incapable of conforming his conduct to the requirements of the law.  See id. at 276.

We acknowledge Barrera's argument that tampering with evidence—the crime for which he was found guilty in this case—is not a violent offense.  However, as the Rummel Court aptly observed, “the presence or absence of violence does not always affect the strength of society's interest in ․ punishing a particular criminal.”  Id. at 275.

For these reasons, we conclude that Barrera's forty-year sentence is not grossly disproportionate to the crime and find that the trial court did not abuse its discretion in sentencing him as a habitual felony offender.  As such, we need not apply the last two factors of the Solem test.  See McGruder, 954 F.2d at 316;  Sullivan, 975 S.W.2d at 757.  However, even if we were to continue our analysis of the remaining two factors under Solem, Barrera presented no evidence at the punishment hearing concerning the sentences imposed in Texas and other jurisdictions for the commission of similar crimes.  We are therefore unable to make the type of comparative evaluation that the last two factors of the Solem test calls for.  See Sullivan, 975 S.W.2d at 757;  Simmons v. State, 944 S.W.2d 11, 15 (Tex.App.–Tyler 1996, no pet.).  We overrule Barrera's sole issue.

II. Conclusion

We affirm the judgment of the trial court.

FOOTNOTES

1.   As this is a memorandum opinion, and the parties are familiar with the facts, we will not recite them except as necessary to explain the Court's decision and the basic reasons for it.  See Tex.R.App. P. 47.4.

Memorandum Opinion by Chief Justice Valdez