Gregory Pollock v. State , 405 S.W.3d 396 ( 2013 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-12-00362-CR
GREGORY POLLOCK APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM THE 158TH DISTRICT COURT OF DENTON COUNTY
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OPINION
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I. INTRODUCTION
A jury convicted Appellant Gregory Pollock of continuous sexual abuse of
a young child, and the trial court sentenced him to life in prison without parole. In
four issues, Pollock argues that the evidence is insufficient to support his
conviction, that the continuous sexual abuse of a child statute is unconstitutional,
and that the trial court erred by not quashing the indictment, by submitting an
improper jury charge that allowed for a nonunanimous verdict, and by assessing
the maximum punishment. We will affirm.
II. FACTUAL AND PROCEDURAL BACKGROUND
Pollock‘s fourth wife is Cathy, and in 2007 through 2009, they lived
together in Flower Mound with Cathy‘s daughter Mary and son Paul.1
In 2007, when Mary was eleven years old and in the sixth grade, she told
her school counselor Jill Adams that Pollock had asked her to pose in lingerie for
him. Mary said that when she asked Pollock for an allowance, he responded by
asking if she wanted to make big girl or little girl money. He then asked if she
would pose in lingerie if he bought it for her, and she refused. Adams reported
the incident to CPS. Adams also talked to Cathy about the allegation. Adams
testified that Cathy cried and asked what she should do; Adams told Cathy to
keep Mary away from Pollock until CPS could investigate.
Cathy sent Mary to stay with a friend for about a week while Cathy ―tried to
get to the bottom of it and find out what was going on.‖ Mary then recanted her
story. Mary told a CPS investigator that she made up the story to get back at
Pollock. Mary also told Adams that she made up the story; Adams testified that
Mary was nervous during the recantation and avoided Adams for the rest of the
school year.
1
To protect the anonymity of the children in this case, we will use aliases to
refer to some of the individuals named herein. See Daggett v. State, 187 S.W.3d
444, 446 n.3 (Tex. Crim. App. 2005); McClendon v. State, 643 S.W.2d 936, 936
n.1 (Tex. Crim. App. [Panel Op.] 1982).
2
Another counselor at Mary‘s school testified at trial that during Mary‘s
seventh grade year, when Mary was twelve years old, she told him that Cathy
had made her recant her story to the CPS investigator the previous year. In
seventh grade, Mary met and became best friends with Julie, who was also in
seventh grade at Mary‘s school. Mary also confided in Julie that Pollock sexually
abused her.
Around Christmas Eve of 2009 while Julie was at Mary‘s house, Julie
encouraged Mary to tell Cathy about the sexual abuse. Cathy overheard the girls
talking and asked what Mary had to tell her, stating, ―It . . . better not be about
[Pollock] . . . because I‘m not falling for that anymore.‖ Mary told Cathy that
Pollock had performed oral sex on her and that she had performed oral sex on
him. Cathy called Pollock and confronted him about the allegations. She
decided not to contact the police.
Shortly thereafter, Mary stayed the night at Pollock‘s son‘s house and told
his wife, Rachael, about the abuse. Rachael had Mary write down everything
that had happened between her and Pollock. Mary wanted Rachael to take her
to the police station that night because Mary said that no one in her family
believed her. Rachael did not do so, but when she dropped off Mary with Cathy
the following day, Rachael told Cathy about Mary‘s allegations and gave Cathy
the letter that Mary had written. Cathy got mad and told Mary, ―I told you not to
tell anybody.‖ Cathy told Rachael that she did not know what to do because she
―just love[s] [Pollock] so much.‖ She also told Mary, in front of Rachael, that
3
Mary would not have a place to live if she continued making the allegations
against Pollock. Mary later told Rachael‘s mother Christine about the abuse, and
Christine reported it to CPS.
CPS Investigator Rebecca Burchett and Flower Mound Police Department
Detective Joe Adcock conducted an audiotaped interview of Mary, who told them
that Pollock took nude photographs of her, put his fingers in her female sexual
organ, performed oral sex on her, and received oral sex from her in exchange for
money, cigarettes, drugs, and privileges. Mary said that she refused Pollock‘s
requests to have sex with her. Forensic interviewer Krystal Powell with the
Children‘s Advocacy Center for Denton County also interviewed Mary. Mary told
Powell about the abuse and said that, in order to get a puppy, she had ―to do that
stuff‖ for two weeks and perform oral sex on Pollock. A few days later, Mary
wrote a paper at school in which she explained that Pollock sexually abused her,
that Cathy did not believe her until Pollock admitted to taking photographs of
Mary, and that Cathy told her that Pollock would go to jail if Mary told on him.
Mary also wrote that Cathy said the abuse ―would never happen to [Mary] again.‖
Detective Adcock went to Pollock and Cathy‘s house and spoke with them.
The detective had a digital audio recorder in his jacket pocket and recorded the
exchange. Cathy said that Julie influenced Mary to make up the accusations
against Pollock. Pollock denied doing anything to Mary. Detective Adcock
searched the residence and recovered three phones, including Pollock‘s and one
found in Mary‘s bedroom. Pollock‘s phone did not contain any sexually explicit
4
photographs of Mary.2 The phone did contain text messages between Pollock
and Mary; in them, Mary said that she ―didn‘t want to tell on‖ Pollock but that Julie
made her, and Pollock responded, ―I know.‖3 During the search, police found in
Cathy‘s purse the letter that Mary wrote at Rachael‘s house.
Several days later, Pollock and Cathy went to the police station to talk to
Detective Adcock. Pollock admitted in a recorded interview that he took between
twenty and fifty nude photographs of Mary on three or four occasions in 2009 but
said that he deleted them all; he denied the other allegations. He said that he
gave Mary ―cigarettes and privileges‖ in exchange for posing for the photographs
and explained to her, ―Can‘t get nothing for free.‖ He said he took the
2
A private investigator certified in computer forensics testified that he
inspected Pollock‘s cell phone and determined that it could take and store
between forty and sixty photographs in the phone‘s internal memory. The private
investigator found 117 photographs on the phone, including some that had been
sent to that phone. He could not determine whether photographs had been
taken and deleted from the phone and testified that photographs could be
deleted from the phone with a simple process. He also testified that the phone
was compatible with a removable memory card, although none was found with
the phone, and that a memory card could store additional photographs.
3
Mary also texted Pollock, ―[Julie] was like you have to tell you[r] mom he
isn‘t making you a better person.‖ Pollock testified at trial that he replied, ―I
know,‖ because he knew that Julie made her lie so that the girls would not be
trouble. In another text, Mary told Pollock, ―I really didn‘t want to tell. . . . I just
don‘t want you and mom to get divorced or anything. And I don‘t want you to be
mad at me.‖ Pollock responded, ―I‘m not.‖ Mary responded, ―How? You and
mom almost got divorced cuz of me,‖ and Pollock texted back, ―Cause i knew
[Julie] made u do it to keep out of trouble.‖
5
photographs because he lost his job, was depressed, and was smoking
marijuana.4 Pollock also wrote a handwritten confession.
Investigator Burchett and Detective Adcock also interviewed Julie, who
confirmed that Mary told her that Pollock took photographs of her nude, made
her model lingerie, touched her, performed oral sex on her, and had her perform
oral sex on him. Julie said that Pollock gave her and Mary drugs, money,
cigarettes, and privileges. Julie also told the investigator and detective that she
had been sexually abused by her uncle when she was younger.
Several months after Pollock was arrested, Mary recanted her allegations
against Pollock. She told Detective Adcock that she and Julie made up the
allegations to keep themselves out of trouble. Mary testified at trial and denied
that Pollock had ever sexually abused her. She testified that she either did not
remember or had lied about what she told Investigator Burchett, Detective
Adcock, Rachael, and the school counselors. She also said that she wrote the
paper at school because she ―had nothing to write about.‖ Mary did not
remember sending Pollock texts apologizing about telling on him because she
was high when she sent them. She testified that she and Julie made up the story
about Pollock as an excuse if they ever got in trouble for doing drugs or
―[h]anging out with . . . older guys.‖ She also said that she made up the
allegations because she did not have many friends and wanted attention.
4
Pollock admitted at trial that he lied to Detective Adcock about losing his
job.
6
Mary‘s biological father testified at trial and said that Mary told him that she
recanted the allegations because Cathy told her to.
Julie testified at trial and recanted the allegations. She said that she and
Mary made up the story after Cathy caught them in a lie when they went to a
boy‘s house. Julie said that she and Mary made up the story based on Julie‘s
experience with her uncle sexually abusing her.
Cathy testified that, in an unrecorded conversation at her house, Detective
Adcock said Pollock would probably get probation if he took the lesser charges
against him and admitted to taking nude photographs of Mary.5 She said that
she and Pollock did not know that taking photographs alone could result in a
sentence of twenty-five years‘ to life imprisonment. Cathy testified that she and
Pollock lied to Detective Adcock about the nude photographs because they did
not want Cathy‘s family to get involved and to ―just get it over with, done with.‖
Pollock also testified that he made up the story about taking photographs of Mary
because he wanted to handle the situation ―quickly and quietly.‖ He thought that
the case would be dropped without any evidence.
III. SUFFICIENCY OF THE EVIDENCE
In his first issue, Pollock argues that the evidence is insufficient to support
his conviction and that the trial court erred by not granting his request for a
directed verdict.
5
Detective Adcock testified that he never told anyone that Pollock would
get probation if he admitted to taking nude photographs of Mary.
7
The standard of review applicable to a motion for directed verdict is the
same used under a sufficiency review. McDuff v. State, 939 S.W.2d 607, 613
(Tex. Crim. App.), cert. denied, 522 U.S. 844 (1997); Havard v. State, 800
S.W.2d 195, 199 (Tex. Crim. App. 1989). In our due-process review of the
sufficiency of the evidence to support a conviction, we view all of the evidence in
the light most favorable to the verdict to determine whether any rational trier of
fact could have found the essential elements of the crime beyond a reasonable
doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); Wise
v. State, 364 S.W.3d 900, 903 (Tex. Crim. App. 2012). This standard gives full
play to the responsibility of the trier of fact to resolve conflicts in the testimony, to
weigh the evidence, and to draw reasonable inferences from basic facts to
ultimate facts. Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Blackman v. State,
350 S.W.3d 588, 595 (Tex. Crim. App. 2011).
The trier of fact is the sole judge of the weight and credibility of the
evidence. See Tex. Code Crim. Proc. Ann. art. 38.04 (West 1979); Wise, 364
S.W.3d at 903. Thus, when performing an evidentiary sufficiency review, we
may not re-evaluate the weight and credibility of the evidence and substitute our
judgment for that of the factfinder. Isassi v. State, 330 S.W.3d 633, 638 (Tex.
Crim. App. 2010). Instead, we determine whether the necessary inferences are
reasonable based upon the cumulative force of the evidence when viewed in the
light most favorable to the verdict. Sorrells v. State, 343 S.W.3d 152, 155 (Tex.
Crim. App. 2011). We must presume that the factfinder resolved any conflicting
8
inferences in favor of the verdict and defer to that resolution. Jackson, 443 U.S.
at 326, 99 S. Ct. at 2793; Wise, 364 S.W.3d at 903.
A person commits continuous sexual abuse of a young child if, during a
period that is thirty days or more in duration, a person commits two or more acts
of sexual abuse against a child younger than fourteen years of age. Tex. Penal
Code Ann. § 21.02(b) (West Supp. 2012). An ―act of sexual abuse‖ includes
indecency with a child other than by touching, sexual assault, aggravated sexual
assault, and sexual performance with a child. Id. § 21.02(c)(2)–(4), (6).
Here, Pollock confessed to taking between twenty and fifty nude
photographs of Mary on his cell phone on three or four occasions in 2009. He
said that the photographs were taken ―in summer to fall.‖ A videotape of his
confession was played for the jury, and his written confession was introduced
into evidence. A rational juror could have found the essential elements of the
offense of continuous sexual abuse of a young child based on Pollock‘s
confession alone. See id. §§ 21.02(b), (c)(6); id. § 43.25 (West 2011) (defining
offense of sexual performance by a child); see also Jackson, 443 U.S. at 326, 99
S. Ct. at 2793; Wise, 364 S.W.3d at 903.
Additionally, although Mary recanted the allegations she made against
Pollock, a rational juror could have found the essential elements of the offense
based on the evidence that Mary told multiple people that Pollock took nude
photographs of her, had her pose in lingerie, had her perform oral sex on him,
inserted his finger into her female sexual organ, and performed oral sex on her.
9
See, e.g., Chambers v. State, 805 S.W.2d 459, 461 (Tex. Crim. App. 1991)
(holding that complainant‘s recantation of her videotaped testimony did not
destroy its probative value and that jury was entitled to disbelieve recantation). A
jury also could have disbelieved Mary‘s explanation that she and Julie made up
the allegations against Pollock because Mary was not friends with Julie until after
she made her first outcry; the record demonstrates that Mary made the first
allegations against Pollock to her school counselor in the sixth grade and
became friends with Julie the following year. The jury heard the audiotaped
interview of Mary conducted by Investigator Burchett and Detective Adcock in
January 2010. In that interview, Mary said that Pollock first took nude
photographs of her in July 2009, that she gave him a ―blow job‖ once in the
summer or fall of 2009, and that he first put his fingers inside her female sexual
organ and his mouth on her sexual organ around October of 2009. Mary said
that Pollock took around fifty or sixty photographs of her, that he put his mouth on
her sexual organ seven or eight times, and that he put his fingers in her sexual
organ four times. She said that the last time Pollock touched her was in
December 2009. The jury also watched the videotaped interview of Mary
conducted by forensic interviewer Powell with the Children‘s Advocacy Center,
saw the paper Mary wrote at Rachael‘s house and the paper she wrote at school
in January 2010, and heard multiple witnesses testify about what Mary had told
them about the abuse. A child sexual abuse expert also testified about the
10
reasons a child recants allegations of abuse, including that she may be scared of
the consequences or want everything to go back to how it once was.
Considering all of the evidence in the light most favorable to the jury‘s
verdict, we hold that a rational juror could have found that Pollock committed the
essential elements of the offense of continuance sexual abuse of a young child
beyond a reasonable doubt. See Jackson, 443 U.S. at 319, 99 S. Ct. at 2789;
Wise, 364 S.W.3d at 903. We overrule Pollock‘s first issue.
IV. MOTION TO QUASH
In his second issue, Pollock argues that the trial court erred by not
quashing the indictment because it failed to give him proper notice so that he
could prepare a defense.
An accused is guaranteed the right to be informed of the nature and cause
of the accusations against him in all criminal actions. See U.S. Const. amend.
VI; Tex. Const. art. I, § 10; State v. Moff, 154 S.W.3d 599, 601 (Tex. Crim. App.
2004). The indictment must be specific enough to inform the defendant of the
nature of the accusations against him so that he may prepare a defense. See
Smith v. State, 297 S.W.3d 260, 267 (Tex. Crim. App. 2009), cert. denied, 130 S.
Ct. 1689 (2010); Moff, 154 S.W.3d at 601. Generally, a charging instrument that
tracks the language of a criminal statute possesses sufficient specificity to
provide a defendant with notice of a charged offense. State v. Edmond, 933
S.W.2d 120, 128 (Tex. Crim. App. 1996). But when a statute defines the manner
or means of commission in several alternative ways, an indictment will fail for
11
lack of specificity if it neglects to identify which of the statutory means it
addresses. Id.; see State v. Barbernell, 257 S.W.3d 248, 251 (Tex. Crim. App.
2008). The sufficiency of an indictment is a question of law and is reviewed de
novo. See Smith, 297 S.W.3d at 267.
For the offense of continuous sexual assault of a child, the act-of-sexual-
abuse element is defined as any act that is, among other things, aggravated
sexual assault under penal code section 22.021, or sexual performance by a
child under penal code section 43.25. See Tex. Penal Code Ann. § 21.02(c)(4),
(6). The penal code identifies several alternative means of committing
aggravated sexual assault—including intentionally or knowingly penetrating the
sexual organ of a child, causing the mouth of a child to contact the sexual organ
of another person, or causing the sexual organ of a child to contact the mouth of
another person—and of committing sexual performance by a child. See id. §§
22.021(a)(1) (West Supp. 2012); 43.25(a), (b), (d) (West 2011).
In this case, the original indictment tracked the language of section 21.02
and alleged that Pollock committed the offense by committing aggravated sexual
assault and/or sexual performance of a child; specifically, the original indictment
alleged that Pollock
during a period that was 30 or more days in duration . . . from on or
about the 1st day of April, 2009 through the 31st day of December,
2009, . . . , did then and there, when the defendant was 17 years of
age or older, commit two or more acts of sexual abuse against
[Mary], a child younger than 14 years of age, namely, aggravated
sexual assault and/or sexual performance of a child.
12
Pollock filed a motion to quash the indictment, alleging that it failed to state how
the offenses of aggravated sexual assault and sexual performance of a child
were committed and that it failed to specify the dates on which the alleged acts
were committed. The day of the hearing on Pollock‘s motion to quash, the State
filed a motion to amend the indictment to allege more specifically the means by
which Pollock committed aggravated sexual assault and sexual performance of a
child. The amended indictment specifically alleged that Pollock,
during a period that was 30 or more days in duration, to-wit: from on
or about the 1st day of April, 2009 through the 31st day of
December, 2009, . . . , did then and there, when the defendant was
17 years of age or older, commit two or more acts of sexual abuse
against [Mary], a child younger than 14 years of age, namely,
aggravated sexual assault, to-wit: by causing defendant‘s mouth to
contact the sexual organ of [Mary], by causing [Mary‘s] mouth to
contact the sexual organ of the defendant and/or by penetrating
[Mary‘s] sexual organ with defendant‘s finger; and/or sexual
performance of a child, to-wit: by producing or promoting a
performance, to-wit: photographs, or other visual representation that
can be exhibited before an audience of one or more persons, that
included sexual conduct, to-wit: masturbation or lewd exhibition of
the genitals, the anus, or any portion of the female breast below the
top of the areola, by [Mary] . . . , or by employing, authorizing or
inducing [Mary] . . . to engage in sexual conduct, to-wit: Masturbation
or lewd exhibition of the genitals, the anus, or any portion of the
female breast below the top of the areola.
At the hearing on Pollock‘s motion to quash, defense counsel argued that, even
as amended, the indictment alleged multiple manner and means of committing
13
the alleged offense and lacked specificity. The trial court denied Pollock‘s motion
to quash and granted the State‘s motion to amend the indictment.6
The amended indictment alleged the specific means by which Pollock
committed the offense of continuous sexual abuse of a young child and alleged
the means by which he committed the individual sexual abuse acts of aggravated
sexual assault and sexual performance by a child. See Tex. Penal Code Ann. §§
22.021; 43.25(a), (b), (d). The State was not required to allege a specific date in
the indictment, and the ―on our about‖ language was sufficient. See Sledge v.
State, 953 S.W.2d 253, 256 (Tex. Crim. App. 1997). The amended indictment
gave sufficient notice to Pollock such that he could prepare a defense. See
Smith, 297 S.W.3d at 267; Moff, 154 S.W.3d at 601. We overrule his second
issue.
V. JURY CHARGE
In his third issue, Pollock argues that the trial court erred by submitting an
improper jury charge that included multiple manner and means for the
6
Pollock does not complain that the amendment charged a new offense; he
also does not complain of the timeliness of the amendment, and trial did not
begin for over a month after the indictment was amended. See Tex. Code Crim.
Proc. Ann. art. 28.10(a) (West 2006) (providing for amendment of an indictment
any time prior to trial and entitling defendant, upon request, to not less than ten
days to respond to an amended indictment); see id. art. 28.10(c) (providing that
no amendment may be had over defendant‘s objection if amendment charges
additional or different offense). We will thus address Pollock‘s contentions as
they apply to the amended indictment. See, e.g., Riney v. State, 28 S.W.3d 561,
566 (Tex. Crim. App. 2000) (explaining that amended portion of indictment
became the ―‗official‘‖ indictment upon amendment).
14
commission of the offense, which allowed a nonunanimous jury verdict. Pollock
also argues that section 21.02 violates his state constitutional right to jury
unanimity.
Jury unanimity is required in all criminal cases in Texas. Cosio v. State,
353 S.W.3d 766, 771 (Tex. Crim. App. 2011); Landrian v. State, 268 S.W.3d 532,
535 (Tex. Crim. App. 2008); Ngo v. State, 175 S.W.3d 738, 745 (Tex. Crim. App.
2005); see also Tex. Const. art. V, § 13. Every juror must agree that ―the
defendant committed the same, single, specific criminal act.‖ Ngo, 175 S.W.3d
at 745. But this does not mean that the ―jury must unanimously find that the
defendant committed that crime in one specific way.‖ Landrian, 268 S.W.3d at
535. In other words, ―[t]he unanimity requirement is not violated by instructing
the jury on alternative theories of committing the same offense, in contrast to
instructing the jury on two separate offenses involving separate incidents.‖
Martinez v. State, 129 S.W.3d 101, 103 (Tex. Crim. App. 2004). A trial court may
not submit ―separate offenses‖ to the jury in the disjunctive, but a trial court may
submit a disjunctive jury charge and obtain a general verdict when alternate
theories or ―manner and means‖ involve the commission of the ―same offense.‖
Clement v. State, 248 S.W.3d 791, 800 (Tex. App.—Fort Worth 2008, no pet.);
see also Ngo, 175 S.W.3d at 745 (stating that the phrase ―manner and means‖
describes how the defendant committed the specific statutory criminal act).
Penal code section 21.02 provides that for the offense of continuous
sexual assault of a young child, a jury is ―not required to agree unanimously on
15
which specific acts of sexual abuse were committed by the defendant or the
exact date when those acts were committed. The jury must agree unanimously
that the defendant, during a period that is 30 or more days in duration, committed
two or more acts of sexual abuse.‖ Tex. Penal Code Ann. § 21.02(d). The
commission of two or more acts of sexual abuse over a specified time period—
that is, the pattern of behavior or the series of acts—is the element as to which
the jurors must be unanimous in order to convict. McMillian v. State, 388 S.W.3d
866, 872 (Tex. App.—Houston [14th Dist.] 2012, no pet.). Thus, section 21.02(d)
does not allow jurors to convict on the basis of different elements, and this court
and our sister courts have held that the statute does not violate the state
constitutional right to jury unanimity. See id. (citing Casey v. State, 349 S.W.3d
825, 829 (Tex. App.—El Paso 2011, pet. ref‘d); Jacobsen v. State, 325 S.W.3d
733, 737 (Tex. App.—Austin 2010, no pet.); Reckart v. State, 323 S.W.3d 588,
601 (Tex. App.—Corpus Christi 2010, pet. ref‘d); Render v. State, 316 S.W.3d
846, 858 (Tex. App.—Dallas 2010, pet. ref‘d), cert. denied, 131 S. Ct. 1533
(2011); Lewis v. State, No. 02-10-00004-CR, 2011 WL 2755469, at *6 (Tex.
App.—Fort Worth July 14, 2011, pet. ref‘d) (mem. op., not designated for
publication); Coker v. State, No. 12-09-00331-CR, 2010 WL 5031098, at *6 (Tex.
App.—Tyler Dec. 8, 2010, no pet.) (mem. op., not designated for publication));
Kennedy v. State, 385 S.W.3d 729, 732 (Tex. App.—Amarillo 2012, pet. ref‘d);
Martin v. State, 335 S.W.3d 867, 871 (Tex. App.—Austin 2011), cert. denied, 133
S. Ct. 645 (2012).
16
Here, the jury charge tracked the language in the indictment. The
individual sexual abuse acts alleged made up the ―series‖ of sexual acts that
created a single element of continuous sexual assault of a child. See Lewis,
2011 WL 2755469, at *6 (explaining that unlike the case of the State charging
two separate offenses in the disjunctive, section 21.02 ―does not make each act
a separate element but creates a single element, a ‗series‘ of sexual abuse.‖)
(internal citations omitted). The jury had to unanimously agree only that Pollock,
during a period of thirty or more days, committed two or more acts of sexual
abuse. Accordingly, the statute does not violate any constitutional right to a
unanimous jury verdict, nor did the jury charge in this case allow for a
nonunanimous verdict. See id. We overrule Pollock‘s third issue.
VI. CONSTITUTIONALITY OF PUNISHMENT
In his fourth issue, Pollock argues that the trial court erred by assessing
the maximum punishment of life imprisonment in violation of the United States
and Texas constitutions. See U.S. Const. amend. VIII; Tex. Const. art. 1, § 13.
Pollock did not object to his sentence at the time it was imposed nor
complain about it in a motion for new trial. We have held on numerous occasions
that this type of claim must be preserved at the trial court level. See Kim v.
State, 283 S.W.3d 473, 475 (Tex. App.—Fort Worth 2009, pet. ref‘d); Acosta v.
State, 160 S.W.3d 204, 211 (Tex. App.—Fort Worth 2005, no pet.); see also
Cisneros v. State, No. 02-06-00103-CR, 2007 WL 80002, at *1 (Tex. App.—Fort
Worth May 23, 2007, pet. ref‘d) (mem. op., not designated for publication)
17
(collecting cases); cf. Burt v. State, 396 S.W.3d 574, 577 (Tex. Crim. App. 2013)
(―A sentencing issue may be preserved by objecting at the punishment hearing,
or when the sentence is pronounced.‖). Because Pollock did not raise his
complaint in the trial court, the complaint is forfeited.7 We overrule his fourth
issue.
VII. CONCLUSION
Having overruled Pollock‘s four issues, we affirm the trial court‘s judgment.
SUE WALKER
JUSTICE
PANEL: GARDNER and WALKER, JJ.; and CHARLES BLEIL (Senior Justice,
Retired, Sitting by Assignment).
PUBLISH
DELIVERED: June 27, 2013
7
Even if we were to reach the merits of his complaint, his punishment was
within the statutory limits for the offense. See Tex. Penal Code Ann. § 21.02(h).
Punishment that is imposed within the statutory limits, and that is based upon the
sentencer‘s informed normative judgment, is generally not subject to challenge
for excessiveness except in ―‗exceedingly rare‘‖ situations. Kim, 283 S.W.3d at
476 (quoting Ex parte Chavez, 213 S.W.3d 320, 323–24 (Tex. Crim. App. 2006)).
18