Jeffrey F. Dorsten v. State ( 2011 )

Opinion issued June 30, 2011

In The

Court of Appeals

For The

First District of Texas

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NOS. 01-09-00500-CR, 01-09-00501-CR, 01-09-00527-CR, 01-09-00528-CR, 01-09-00529-CR

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Jeffrey F. Dorsten, Appellant

V.

The State of Texas, Appellee

On Appeal from the 240th District Court

Fort Bend County, Texas

Trial Court Case Nos. 46062, 46065, 45593, 45594, 46063

MEMORANDUM OPINION

          Appellant, Jeffrey F. Dorsten, without an agreed punishment recommendation from the State, pleaded guilty to three separate offenses of aggravated sexual assault of a child[1] and two separate offenses of indecency with a child.[2]  The trial court found appellant guilty of each offense and assessed his punishment at confinement for thirty-four years for each aggravated sexual assault offense and ten years for each indecency with a child offense, with the sentences to run concurrently.  In three issues in each appeal, appellant contends that the trial court assessed a punishment that is “grossly disproportionate” to the crime committed,[3] “no reasonable fact-finder could have assessed” the punishment “given the underlying factual context,” and the punishment assessed by the trial court violated his right to due process. 

          We affirm. 

Background

          A Ford Bend County Grand Jury issued a true bill of indictment, accusing appellant of committing the offense of aggravated sexual assault of a child on March 10, 1999, April 30, 1999, and July 1, 1999, and the offense of indecency with a child on September 1, 1998, and July 1, 2001. In conjunction with his guilty pleas, appellant filed applications for deferred adjudication and requested pre-sentence investigation (“PSI”) reports, which were filed with the trial court. 

          During the punishment hearing, appellant requested that the trial court consider “a long probation . . . under the strictest of rules that can be done for sexual offenders with treatment under the law.”  The State argued for confinement for life for the aggravated sexual assault offenses and twenty years for the indecency with a child offenses.  At the conclusion of the punishment hearing, the trial court found appellant guilty of all five offenses, stating that “there are a lot of factors that enter into the [punishment] decision” and it will “take into account all of those factors to make a decision that . . . is warranted in this case.”  After the trial court announced its sentences, appellant neither objected at the hearing nor filed a motion for new trial.

Excessive Punishment

In his first issue in each appeal, appellant argues that the sentence assessed constitutes “cruel and unusual punishment” and is “excessive” and “grossly disproportionate” to the crimes committed because his conduct did not involve any type of violence or force, he is a first-time offender, the “victims are at the upper end of the statutorily protected age range,” and there are no “aggravating factors to justify such an excessive sentence.”  The State argues that because appellant neither objected to the alleged disproportionality of the sentences in the trial court nor raised the issue in post-trial motions, appellant has not preserved this argument for our review. 

To preserve error for appellate review, a timely and reasonably specific objection, followed by an adverse ruling is required.  Tex. R. App. P. 33.1(a); Jacoby v. State, 227 S.W.3d 128, 130 (Tex. App.—Houston [1st Dist.] 2006, pet. ref’d); Steadman v. State, 31 S.W.3d 738, 742 (Tex. App.—Houston [1st Dist.] 2000, pet. ref’d) (citing Turner v. State, 805 S.W.2d 423, 431 (Tex. Crim. App. 1991)). The failure to object to an alleged disproportionate sentence in the trial court or in a post-trial motion waives any error.  Jacoby, 227 S.W.3d at 130; see, e.g., Nicholas v. State, 56 S.W.3d 760, 768 (Tex. App.—Houston [14th Dist.] 2001, pet. ref’d).  Here, appellant neither objected to the alleged disproportionality of the sentences in the trial court, nor raised the issue in post-trial motions.  His argument, therefore, is not preserved for review.  See Tex. R. App. P. 33.1(a).

Accordingly, we overrule appellant’s first issue in each appeal.

Abuse of Discretion

In his second issue in each appeal, appellant argues that the “sentence rendered by the trial court amounted to an abuse of discretion because no reasonable fact-finder could have assessed such a sentence given the underlying factual context,” i.e., the sentence is “radically out of step with the facts presented.”  Appellant asserts that the trial court abused its discretion “in failing to properly consider” mitigating factors, the testimony of the evaluating psychologists, and the underlying facts.  Appellant notes that a psychologist testified that appellant’s “psychological background was composed of low-risk indicators,” two psychologists testified that his potential recidivism rate was 12-19%, there were no allegations of violence or force in the commission of the offenses, and there is no evidence of any criminal acts by appellant in the nine years since the July 1, 2001 offense.   

We will not overturn a trial judge’s decision on punishment absent an abuse of discretion.  Jackson v. State, 680 S.W.2d 809, 814 (Tex. Crim. App. 1984).  As a general rule, a trial court’s assessment of punishment will not be disturbed on appeal if it falls within the statutory limit.  Id.; Hernandez v. State, Nos. 01-00-01422-CR, 01-00-01423-CR, 2002 WL 356740, at *3 (Tex. App.—Houston [1st Dist.] Mar. 7, 2002, pet. ref’d) (not designated for publication). 

Here, appellant was convicted of three separate first-degree felonies, aggravated sexual assault of a child, and two separate second-degree felonies, indecency with a child.  See Tex. Penal Code Ann. §§ 22.02, 21.11(a)(1) (Vernon 2011).  The punishment for a first degree felony is confinement for life or any term of not more than ninety-nine years or less than five years.  Id. § 12.32 (Vernon 2011). The punishment for a second degree felony is confinement for any term of not more than twenty years or less than two years.  Id. § 12.33 (Vernon 2011). 

As noted above, the trial court sentenced appellant to confinement for thirty-four years for each offense of aggravated sexual assault of a child and ten years for each offense of indecency with a child, with the sentences to run concurrently.  Thus, the trial court assessed punishment within the applicable statutory range.  Nothing in the record indicates that the trial judge did not consider the testimony and evidence relied on by appellant.  See Gerhardt v. State, 935 S.W.2d 192, 196 (Tex. App.—Beaumont 1996, no pet.) (holding no abuse of discretion when sentence fell on the high end of the statutory range when nothing in record indicated that trial court did not consider mitigating facts pointed out by appellant).  Indeed, the punishment assessed in each case is far less than that argued for by the State. Accordingly, we hold that the trial court did not abuse its discretion in assessing appellant’s punishment for each offense.

We overrule appellant’s second issue in each appeal.

Due Process

In his third issue in each appeal, appellant argues that the “process by which [he] was sentenced violated his right to due process by delegating unguided and unchecked judicial discretion to the trial court, resulting in an excessive sentence.”  He further argues that because the Texas Legislature has not enacted sentencing guidelines, “it is left to the appellate judiciary to place meaningful limits on unfettered discretion and the resulting disproportionality such as that which has occurred in this case.”

As noted above, the record reveals that appellant made no objections to the trial court about its sentences.  A defendant must present to the trial court a timely, specific objection and obtain an adverse ruling to preserve for appeal his complaint concerning a violation of due process rights.  See Tex. R. App. P. 33.1(a)(1)(A); Alexander v. State, 137 S.W.3d 127, 130–31 (Tex. App.—Houston [1st Dist.] 2004, pet. ref’d) (holding that failure to object to violations of federal and state due process rights waives appellate review of those claims). Accordingly, appellant has waived his challenge to his sentence on due process grounds.  See id. 

We overrule appellant’s third issue in each appeal.

Conclusion

We affirm the judgments of the trial court. 

                                                                   Terry Jennings

                                                                   Justice

Panel consists of Justices Jennings, Bland, and Massengale.

Do not publish.  Tex. R. App. P. 47.2(b).

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[1]           See Tex. Penal Code Ann. § 22.02 (Vernon 2011); trial cause nos. 46062, 46065, 46063; appellate cause nos. 01-09-00500-CR, 01-09-00501-CR, 01-09-00529-CR.

[2]           See id. § 21.11 (Vernon 2011); trial cause nos. 45593, 45594; appellate cause nos. 01-09-00527-CR, 01-09-00528-CR.

[3]           See U.S. Const. amend VIII; see also Tex. Const. art. I, § 13.