Gladi Gutierrez Delacruz v. State ( 2005 )

In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

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No. 06-04-00123-CR

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GLADI GUTIERREZ DELACRUZ, Appellant

 

V.

 

THE STATE OF TEXAS, Appellee

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On Appeal from the 124th Judicial District Court

Gregg County, Texas

Trial Court No. 31571-B

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Before Morriss, C.J., Ross and Carter, JJ.

Opinion by Justice Carter

O P I N I O N

            Gladis Gutierrez Delacruz appeals from her conviction by a jury for driving while intoxicated while the vehicle was occupied by a passenger younger than fifteen years of age. The jury assessed punishment at six months' incarceration in a state jail facility. The trial court declined to place Delacruz on community supervision. On appeal, Delacruz contends the sentence imposed is disproportionate to the offense.

            We first look to see if the issue has been preserved for review. Delacruz did not object to the sentence on the ground it was disproportionate to the crime, or on any other ground, at the time it was imposed. However, the motion for new trial contains a contention that the sentence was disproportionate to the offense. To preserve a complaint for appellate review, an appellant must have presented to the trial court a timely request, objection, or motion stating the specific grounds for the ruling desired. Tex. R. App. P. 33.1(a)(1)(A); Rhoades v. State, 934 S.W.2d 113, 119 (Tex. Crim. App. 1996). This Court has held that a defendant is required to raise a disproportionality objection in a timely manner. Hookie v. State, 136 S.W.3d 671, 679 (Tex. App.—Texarkana 2004, no pet.); Jackson v. State, 989 S.W.2d 842, 845 (Tex. App.—Texarkana 1999, no pet.).

            Texas courts have traditionally held that, as long as the punishment assessed is within the range prescribed by the Legislature in a valid statute, the punishment is not excessive, cruel, or unusual. See, e.g., Jordan v. State, 495 S.W.2d 949, 952 (Tex. Crim. App. 1973). However, in Jackson, 989 S.W.2d at 845, we recognized that a prohibition against grossly disproportionate punishment survives under the Eighth Amendment to the United States Constitution apart from any consideration of whether the punishment assessed is within the range established by the Legislature. See also Fluellen v. State, 71 S.W.3d 870, 873 (Tex. App.—Texarkana 2002, pet. ref'd).

            As we set out in Alberto v. State, 100 S.W.3d 528, 530 (Tex. App.—Texarkana 2003, no pet.), our proportionality analysis is guided by (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 commission of the same crime in other jurisdictions. See Solem v. Helm, 463 U.S. 277, 292 (1983). Only if we find that the sentence is grossly disproportionate to the offense will we then consider the remaining factors of the Solem test and compare the sentence received to sentences for similar crimes in the same jurisdiction and to sentences for the same crime in other jurisdictions. Alberto, 100 S.W.3d at 530.

            Here, the sentence imposed is practically, the minimum. We cannot say that the sentence is grossly disproportionate to the offense. Further, there is no evidence in the record comparing this sentence with others in the same jurisdiction for this offense, or those imposed on defendants in other jurisdictions who committed a similar offense. See id. For all of those reasons, disproportionate sentencing has not been shown.

            We affirm the judgment.

                                                                        Jack Carter

                                                                        Justice

 

Date Submitted:          May 18, 2005

Date Decided:             June 22, 2005

Publish

een a shooting, based on the wound to Landreth and the shotgun shells lying nearby. Ellis was told that Shipp was the shooter and that Shipp was in a black Ford Ranger pickup truck with a white female kidnap victim. About 4:30 a.m, Ellis put out an all-points bulletin for Shipp indicating that he was armed and dangerous. Soon thereafter, Ellis received a report that Shipp's kidnap victim, Prater, was located at the Athens Police Department, to which Ellis went and interviewed her. Prater told Ellis that she had been kidnapped and raped by Shipp. Prater also gave Ellis a statement in which she stated that Shipp had shot Landreth. Still later, Ellis received a report that Shipp was at Terrell State Hospital wanting to turn himself in or check himself in. Ellis asked Terrell police to hold Shipp until Ellis could get there. Ellis went to Terrell, arrested Shipp, and transported him back to Athens, where--a few hours later--Shipp was taken before Sanford, who read him his rights before a statement was taken from him.

We conclude that a reasonable officer in Ellis' position ⁽⁷⁾ would have probable cause to determine Shipp had committed an offense, such that a warrant was not required for his arrest. See Beverly, 792 S.W.2d at 104-05. Thus, based on the totality of the circumstances in this case, the trial court was justified in finding that the arrest was legal. ⁽⁸⁾

Because the arrest was legal, Shipp's voluntary confession was validly admitted as the fruit of a legal arrest. Accordingly, we find that the trial court did not abuse its discretion in failing to suppress the confession.

We affirm the judgment of the trial court.

Josh R. Morriss, III

Chief Justice

Date Submitted: December 3, 2009

Date Decided: December 15, 2009

Do Not Publish

1. The Texas Court of Criminal Appeals granted an out-of-time appeal in this case from the 1994  judgment  such  that  we  may  address  the  merits  of  this  appeal.  See  Ex  parte  Shipp, No. AP-76,061, 2008 WL 5245337 (Tex. Crim. App. Dec. 17, 2008) (not designated for publication).

2. This case was transferred to this Court from the Twelfth District Court of Appeals in Tyler as  part  of  the  Texas  Supreme  Court's  docket  equalization  program.  See  Tex.  Gov't  Code Ann. § 73.001 (Vernon 2005). We are not aware of any conflict between the precedent of the Tyler court and the precedent of this Court on any issue relevant in this appeal. See Tex. R. App. P. 41.3.

3. Shipp was convicted of the offense of murder and received life imprisonment in the Texas Department of Criminal Justice--Institutional Division.

4. Miranda v. Arizona, 384 U.S. 436 (1966).

5. It appeared that Shipp also had warrants outstanding from other counties at the time of arraignment.

6. There is no indication Shipp was free to leave the police department.

7. While we find no indication that Ellis knew the following information at the time he arrested Shipp, Clem also gave a statement putting the murder weapon in Shipp's hand. Since Prater drove Shipp's truck to the Athens Police Department after her escape and told them of the circumstances and of Shipp's actions, officers there had retrieved from Shipp's truck the "short barrel shotgun believed to be the weapon used in the shooting."

8. Also, Article 14.03(a)(1) of the Texas Code of Criminal Procedure authorizes a warrantless arrest of persons found in suspicious places and under circumstances which reasonably show that such persons have been guilty of some felony. This article requires "the functional equivalent of probable cause to believe that a particular person has committed a felony." Johnson v. State, 722 S.W.2d 417, 421 (Tex. Crim. App. 1986), overruled in part on other grounds by McKenna v. State, 780 S.W.2d 797 (Tex. Crim. App. 1989); see Tex. Code Crim. Proc. Ann. art. 14.03 (Vernon Supp. 2009). Again, Shipp was found at "Terrell State Hospital [and] wanted to turn himself in." Hospitals have been found to be suspicious places by Texas courts. Dyar v. State, 125 S.W.3d 460, 468 (Tex. Crim. App. 2003). The fact that Shipp was found in a hospital, coupled with his reportedly wanting to turn himself in, and the remaining circumstances, could also have given Ellis probable cause that Shipp was guilty of a felony such that the warrant exception applied to the Terrell Police Department's arrest.