Louis Garcia v. the State of Texas ( 2023 )

In The
Court of Appeals
Seventh District of Texas at Amarillo
No. 07-22-00187-CR
LOUIS GARCIA, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
On Appeal from the 100th District Court
Collingsworth County, Texas
Trial Court No. 3081, Honorable Stuart Messer, Presiding
July 12, 2023
OPINION
Before QUINN, C.J. and PARKER and YARBROUGH, JJ.
“ . . . there’s many a slip ‘twixt the cup and the lip.” That is no less applicable to
the sole issue before us. Louis Garcia appealed the adjudication of his guilt for the
second-degree felony offense of aggravated assault with a deadly weapon. The trial court
sentenced him to an 18-year prison term and levied a $500 fine. The sole issue we
mentioned involves his complaint about the sentence being grossly disproportionate to
the offense in violation of the Eighth Amendment to the United States Constitution. We
affirm.
Binding authority obligates us to determine whether appellant preserved for review
his complaint before addressing its merits. Obella v. State, 532 S.W.3d 405, 407 (Tex.
Crim. App. 2017) (quoting Wilson v. State, 311 S.W.3d 452, 473 (Tex. Crim. App. 2010)).
To preserve a complaint about a sentence being grossly disproportionate or otherwise
cruel and unusual punishment, a defendant must inform the trial court of the matter
through a timely request, objection, or motion. Green v. State, Nos. 07-19-00411-CR,
07-19-00412-CR, 07-19-00413-CR, 2021 Tex. App. LEXIS 5589, at *16 (Tex. App.—
Amarillo July 14, 2021, pet. ref’d) (mem. op., not designated for publication). That may
occur at the time of sentencing or via a motion for new trial. Abney v. State, No. 10-19-
00139-CR, 2020 Tex. App. LEXIS 10400, at *10 (Tex. App.—Waco Dec. 30, 2020, no
pet.) (mem. op., not designated for publication); Hakim v. State, No. 07-19-00088-CR,
2019 Tex. App. LEXIS 8928, at *1 (Tex. App.—Amarillo Oct. 7, 2019, pet. ref’d) (mem.
op., not designated for publication); accord Castaneda v. State, 135 S.W.3d 719, 723
(Tex. Crim. App. 2003) (holding that appellant failed to preserve his complaint about the
sentence being cruel and unusual since he neither objected to it when the trial court
pronounced it nor raised it in a motion for new trial).
Here, appellant said nothing of the matter at time of sentencing. Instead, he
attempted to raise disproportionality through an amended motion for new trial. Utilizing
that avenue, though, resurrected another hurdle. Clearing it required presentation of the
motion to the trial judge or another authorized to act for him. Stokes v. State, 277 S.W.3d
20, 21–22 (Tex. Crim. App. 2009) (quoting Carranza v. State, 960 S.W.2d 76 (Tex. Crim.
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App. 1998)); Valdez v. State, No. 03-16-00191-CR, 2017 Tex. App. LEXIS 5813, at *4
(Tex. App.—Austin June 23, 2017, no pet.) (mem. op., not designated for publication).
And, presentation must be through a means affording “actual notice” of the motion.
Obella, 532 S.W.3d at 407.
Upon reviewing the limited appellate record, we encountered only one possible
means of presentation attempted by appellant. It appears in the amended motion for new
trial under the label “Certificate of Presentment.” Therein, defense counsel certified “that
a true and correct copy of the above and foregoing has been e-served on the Office for
the 100th Judicial District Court of Collingsworth County, on this day, July 6, 2022.” Yet,
the record does not reflect that the “Office” received the e-service. Nor does it reflect that
if the “Office” received it, the trial judge or anyone authorized to act for the court saw it or
its content (i.e., the motion for new trial attached to the email).
Referring back to “slip being between the cup and the lip,” we hesitate to say that
sending an email alone proves the recipient gained actual notice of its content. Email
addresses may be wrong, resulting in nondelivery. Programs may divert them to spam
or junk files. The missives may wander long periods of time within the mysterious ethernet
before ultimate delivery. They may be hidden within a morass of unsolicited emails.
Attachments may go unattached. Or, emails may just go unseen. Those potentialities
may well be why the Dallas Court of Appeals in Hashmi v. State, Nos. 05-21-01129-CR,
05-21-01130-CR, 05-21-01131-CR, 05-21-01132-CR, 2022 Tex. App. LEXIS 7949 (Tex.
App.—Dallas Oct. 26, 2022, pet. ref’d) (mem. op., not designated for publication)
concluded that the email sent to a court coordinator “does not constitute
presentment . . . as the record contains nothing showing the . . . coordinator received
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actual notice of it.” Id. at *10. We agree. Without more than an allegation about sending
an email, the circumstances at bar do not establish that the trial judge or someone with
authority to act for him had actual notice of the amended motion for new trial or the
disproportionality claim within it.
And even if sending an email was possibly some evidence of presentment
warranting further development through abatement of the appeal, see Obella, 2017 Tex.
App. LEXIS 5511, at *5–6 (discussing the possibility of abatement to develop the issue of
presentment), the law does not require performance of a futile act. Hill v. State, 90 S.W.3d
308, 316 (Tex. Crim. App. 2002) (refusing to abate the cause since it would be a futile
act). Abatement would be futile here since the record lacks evidence of satisfying factors
of the applicable disproportionality test. The factors of which we speak concern evidence
of sentences imposed on other criminals in the same jurisdiction as well as those imposed
for commission of the same crime in other jurisdictions. Valles v. State, No. 07-18-00049-
CR, 2018 Tex. App. LEXIS 9828, at *3–4 (Tex. App.—Amarillo Nov. 29, 2018, no pet.)
(mem. op., not designated for publication) (describing these as two of the three factors to
be considered). Appellant merely concludes in his brief that the judge of the 100th Judicial
District “regularly assess[es] the maximum sentence, or near the maximum sentence for
all defendants that have violated the terms and conditions of their community
supervision.” On the other hand, those in surrounding districts levy “punishment . . .
regularly significantly less for revocations if the defendant does not have a prior criminal
history.” But, again, those are conclusions lacking evidentiary support. Without such
support, we cannot analyze the validity of appellant’s complaint even if abatement proved
that appellant actually presented his motion to the trial court.
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Consequently, we overrule appellant’s sole issue and affirm the judgment.
Brian Quinn
Chief Justice
Publish.
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