Affirmed and Opinion filed July 16, 2015.

In The

Fourteenth Court of Appeals

NO. 14-14-00389-CR

ERIC LOPEZ, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 337th District Court

Harris County, Texas

Trial Court Cause No. 1372079

O P I N I O N

Appellant, Eric Lopez, was charged by indictment with indecency with a 

child, which included an enhancement paragraph alleging a prior conviction for 

indecency with a child. A jury convicted appellant of the charged offense and 

found the enhancement allegation to be “true.” Appellant was sentenced to a 

mandatory sentence of life imprisonment pursuant to Texas Penal Code Section 

12.42(c)(2). See Tex. Penal Code Ann. § 12.42 (c)(2) (West, Westlaw through 

2015 R.S.).
2

In three issues, appellant contends (1) the automatic life sentencing 

requirement violates the state and federal constitutions, (2) appellant was denied 

effective assistance of counsel, and (3) the trial court erred in admitting evidence 

of an extraneous offense. We affirm.

I. MANDATORY IMPOSITION OF LIFE SENTENCE

In his first issue, appellant contends that the mandatory sentence of life 

imprisonment under Texas Penal Code Section 12.42(c)(2) violates the 

constitutional prohibition against cruel and unusual punishment found in the 

Eighth Amendment and deprives him of due process of law under the Fourteenth 

Amendment to the United States Constitution and Article 1, Section 13 of the 

Texas Constitution.1 See U.S. CONST. amend. VIII, XIV; TEX. CONST. art. 1, § 13; 

Tex. Penal Code Ann. § 12.42(c)(2). Section 12.42(c)(2) provides that a defendant 

shall be punished by imprisonment in the Texas Department of Criminal Justice 

for life if he is convicted of indecency with a child and has previously been 

convicted of indecency with a child. See Tex. Penal Code Ann. § 12.42(c)(2); see 

also id. § 21.11(a)(1) (West, Westlaw through 2015 R.S.).

Relying on Penry v. Lynaugh, 492 U.S. 302 (1989), appellant asserts that the 

mandatory imposition of the life sentence is unconstitutional under the Eighth and 

Fourteenth Amendments because Section 12.42(c)(2) provides no opportunity for 

the presentation of mitigating evidence. Appellant asserts that, even though his 

conviction did not involve the punishment of death, mitigating evidence should be 

considered to avoid constitutional violations. See id., 492 U.S. at 328 (holding 

 

1 Appellant cites Article 1, Section 13 of the Texas Constitution; however, he presents no 

argument explaining how the Texas Constitution offers greater protection than the United States 

Constitution. Accordingly, he has not preserved that claim for review. See Pena v. State, 285 

S.W.3d 459, 464 (Tex. Crim. App. 2009); Baldridge v. State, 77 S.W.3d 890, 894 (Tex. App.—

Houston [14th Dist.] 2002, pet. ref’d) (citing Puga v. State, 916 S.W.2d 547, 550 (Tex. App.—

San Antonio 1996, no pet.)).
3

“when the choice is between life and death, that risk is unacceptable and 

incompatible with the commands of the Eighth and Fourteenth Amendments.”). 

Yet, the sentence at issue here is life imprisonment and not a death sentence; 

therefore, the Penry holding is inapplicable.

The Eighth Amendment provides: “Excessive bail shall not be required, nor 

excessive fines imposed, nor cruel and unusual punishments inflicted.” See U.S.

CONST. amend. VIII. Criminal sentencing is a matter left to “legislative 

prerogative.” See Harmelin v. Michigan, 501 U.S. 957, 961–962 (1991) (Scalia, J., 

announcing judgment of the Court; Kennedy, J., concurring) (overruling an Eighth

Amendment objection to a mandatory life-without-parole sentence). The Harmelin

court determined that individualized sentencing shall not apply to a term-of-years 

sentence because no sentence compares with the severity of a capital sentence, 

stating:

. . . [T]his claim [Eighth Amendment objection] has no support in the 

text and history of the Eighth Amendment. Severe, mandatory 

penalties may be cruel, but they are not unusual in the constitutional 

sense, having been employed in various forms throughout our 

Nation’s history. . . . There can be no serious contention, then, that a 

sentence which is not otherwise cruel and unusual becomes so simply 

because it is “mandatory.”

Id. at 994–95. 

Therefore, the Eighth Amendment does not grant to a criminal defendant the 

right to present mitigating evidence when the State seeks a term-of-years sentence, 

as it did here under Section 12.42(c)(2). See Tex. Penal Code Ann. § 12.42(c)(2); 

Harmelin, 501 U.S. at 994–95; Ex Parte Chavez, 213 S.W.3d 320, 324 n.20 (Tex. 

Crim. App. 2006) (denying complaint that due process required new punishment 

proceeding and mentioning the Eighth Amendment does not mandate 

individualized sentencing in non-capital cases); see also Lewis v. State, 428 
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S.W.3d 860, 862–64 (Tex. Crim. App. 2014) (deciding in a capital case, the 

mandatory life sentence under Texas Penal Code Section 12.31 did not present an 

Eighth Amendment violation). 

Additionally, this court and a sister court have determined that the 

mandatory life sentencing statute does not violate the Eighth Amendment. See

Lewis v. State, 448 S.W.3d 138, 147 (Tex. App.—Houston [14th Dist.] 2014, pet 

ref’d) pet. for cert. filed (considering a due process challenge in a capital case and 

holding mandatory sentencing statutes do not violate due process) (citing Moore v. 

State, 54 S.W.3d 529, 544 (Tex. App.—Fort Worth 2001, pet. ref’d)); see also

Paolilla v. State, 342 S.W.3d 783, 791 (Tex. App.—Houston [14th Dist.] 2011, 

pet. ref’d) (involving Texas Penal Code Section 12.31 and holding that, in a capital 

case, mandatory life sentence to 17-year-old defendant did not amount to cruel and 

unusual punishment and did not violate the Eighth Amendment); Wilkerson v. 

State, 347 S.W.3d 720, 722–23 (Tex. App.—Houston [14th Dist.] 2011, pet. ref’d) 

(construing Texas Penal Code Section 12.31, imposing mandatory life 

imprisonment without parole in capital murder case where State did not seek the 

death penalty, and concluding the Eighth Amendment constitutional challenge 

failed); Welch v. State, 335 S.W.3d 376, 380 (Tex. App.—Houston [14th Dist.] 

2011, pet. ref’d) (holding in a non-capital case where a fifteen-year sentence was 

imposed, the Eighth Amendment did not require the trial court to consider 

mitigating evidence of mental health); Cardona v. State, 768 S.W.2d 823, 827 

(Tex. App.—Houston [14th Dist.] 1989, no pet.) (concluding the Legislature had 

rational basis to impose mandatory sentence and, therefore, was not violative of 

due process); see also Duran v. State, 363 S.W.3d 719, 722–23 (Tex. App—

Houston [1st Dist.] 2011, pet. ref’d) (deciding that mandatory life sentence under 

Section 12.42(c)(2) did not violate the Eighth Amendment). 
5

Without presenting argument on the contention, appellant also claims his 

due process rights under the Fourteenth Amendment were violated by the 

imposition of the mandatory life sentence on the same basis; specifically, that it 

precludes the jury’s consideration of mitigating evidence. We reject appellant’s 

due process challenge to Section 12.42(c)(2), as did the Moore court:

Constitutional due process demands a rational basis for legislativelycreated classifications creating punishment schemes for criminal 

offenses. Smith v. State, 737 S.W.2d 933, 939–39 (Tex. App.—Dallas 

1987, pet. ref’d). Although a defendant must be afforded some degree 

of due process at sentencing, the same degree of process is not 

required at sentencing as at trial. U.S. v. Rochester, 898 F.2d 971, 981 

(5th Cir. 1990). The test is whether the punishment scheme is 

rationally related to a legitimate state interest.

Moore, 54 S.W.3d at 544 (citing Williams v. State, 10 S.W.3d 370, 372–73 (Tex. 

App.—Tyler 1999, pet. ref’d). 

We hold that the mandatory life sentence imposed under Texas Penal Code 

Section 12.42(c)(2) is not unconstitutional under either the Eighth or Fourteenth 

amendments to the United States Constitution. We overrule appellant’s first issue.

II. ASSISTANCE OF COUNSEL

To prevail on an ineffective-assistance claim, an appellant must establish (1) 

trial counsel’s representation fell below the objective standard of reasonableness, 

based on prevailing professional norms, and (2) there is a reasonable probability 

that the result of the proceeding would have been different but for counsel=s 

deficient performance. Strickland v. Washington, 466 U.S. 668, 688–92 (1984); 

see Hernandez v. State, 726 S.W.2d 53, 55–57 (Tex. Crim. App. 1986) (holding 

Strickland standard applies to ineffective-assistance claims under Texas 

Constitution). 
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We indulge a strong presumption that counsel’s actions fell within the wide 

range of reasonable professional behavior and were motivated by sound trial 

strategy. Strickland, 466 U.S. at 689; Thompson v. State, 9 S.W.3d 808, 813 (Tex. 

Crim. App. 1999). Thus “the defendant must overcome the presumption that, 

under the circumstances, the challenged action ‘might be considered sound trial 

strategy.’” Thompson, 9 S.W.3d at 812. The presumption is overcome only when 

evidence of ineffective assistance is “firmly founded and affirmatively 

demonstrated in the record.” Melancon v. State, 66 S.W.3d 375, 378 (Tex. App.—

Houston [14th Dist.] 2001, pet. ref’d) (citing McFarland v. State, 928 S.W.2d 482, 

500 (Tex. Crim. App. 1996)). The totality of the representation is the appropriate 

context; counsel is not to be judged on isolated portions of his representation. 

Strickland, 466 U.S. at 688. Our review of counsel’s performance is highly 

deferential, beginning with the strong presumption counsel’s actions were 

reasonably professional and motivated by sound trial strategy. See Jackson v.

State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994).

Where there is no record explaining the underlying reasons for counsel’s 

conduct, we will not speculate about them. Perez v. State, 56 S.W.3d 727, 731 

(Tex. App.—Houston [14th Dist.] 2001, pet. ref’d) (citing Gamble v. State, 916 

S.W.3d 92, 93 (Tex. App.—Houston [1st Dist.] 1996, no pet.)); see also Ex parte 

Varelas, 45 S.W.3d 627, 623 (Tex. Crim. App. 2001). The presumption is not 

rebutted where the record is silent as to counsel’s rationale for his trial strategy. 

Perez, 56 S.W.3d at 732. We will not find ineffective assistance unless counsel’s 

conduct was “so outrageous that no competent attorney would have engaged in it.” 

Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005). 

[I] is not sufficient that the appellant show, with the benefit of 

hindsight, that his counsel’s actions or omissions during trial were 

merely of questionable competence. Mata v. State, 226 S.W.3d 425,
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430 (Tex. Crim. App. 2005). Rather, to establish that the attorney’s 

acts or omissions were outside the range of professionally competent 

assistance, appellant must show that counsel’s errors were so serious 

that he was not functioning as counsel. Patrick v. State, 906 S.W.2d 

481, 495 (1995).

Wert v. State, 383 S.W.3d 747, 752 (Tex. App.—Houston [14th Dist.] 2012, 

no pet.).

Appellant complains of one instance of ineffective assistance, contending his 

counsel performed deficiently and mislead the jury when, at the punishment phase, 

he asked the jury to render a “true” verdict:

Ladies and gentlemen of the jury, you took an oath to examine the 

evidence carefully, to read the law and Court’s instructions that the 

Court is going to give you and to render a true verdict. That’s what 

we’re asking you to do. I want you to carefully consider the evidence 

that you’re going to be given, that you have been given and decide 

whether that enhancement paragraph is true or not and render a true 

verdict. That’s what Mr. Lopez is asking you to do. Thank you.

(Emphasis added).

In his appellate brief, appellant asserts that this statement “may have only 

intended to remind the jurors of their oaths it was still a dangerous phrase to use.” 

He further suggests that this statement invited the jury to find “true” to the 

enhancement paragraph, which mandated the automatic life sentence. We 

disagree.

The record reflects that, pursuant to Texas Code of Criminal Procedure 

article 35.22, the trial court administered the follow oath of the jurors:

You and each of you do solemnly swear that in the case of the State of 

Texas against the defendant, you will render a true verdict according 

to the law and the evidence, so help you God.

See Tex. Code Crim. Proc. Ann. art. 35.22 (West, Westlaw through 2015 R.S.)

(Emphasis added).
8

We conclude that, when construing counsel’s argument in its entirety, it is 

clear counsel was not inviting the jury to answer “true” to the enhancement 

paragraph. Rather, counsel emphasized that the jury must decide whether the 

enhancement paragraph was “true” or “not true” and then render a “true verdict,” 

meaning an accurate verdict, consistent with the juror oath. Therefore, counsel’s 

statement in closing argument was not “so outrageous that no competent attorney 

would have engaged in it.” See Goodspeed, 187 S.W.3d at 392. 

Additionally, appellant entered a plea of “not true” to the enhancement 

allegation when he was arraigned in the jury’s presence. Thus, appellant’s plea 

further supports that counsel was not asking the jury to answer “true” to the 

enhancement paragraph.

Finally, in the punishment phase charge, the trial court instructed:

The enhancement paragraph of the indictment alleges that before the 

commission of the offense for which you have found the defendant 

guilty, . . . the defendant was convicted of the felony offense of 

indecency of a child. To this allegation in the enhancement paragraph 

of the indictment the defendant has pleaded “not true”.

If you believe from the evidence beyond a reasonable doubt that the 

allegations set out in the enhancement paragraph of the indictment are 

true, you will state in your verdict that you find “true” the allegations 

of the enhancement paragraph of the indictment; but unless you so 

believe, or if you have a reasonable doubt thereof, you will answer 

“not true” to the allegations of the enhancement paragraph of the 

indictment. 

In so doing, the trial court charged the jury that appellant pleaded “not true” 

to the enhancement paragraph and the jury must find “true” or “not true” on 

enhancement. Therefore, again, the trial court’s instruction reinforced to the jury 

that counsel was not asking the jury to find the enhancement paragraph “true.” 
9

Instead, counsel was urging the jury to make the decision it considered “true” 

under the facts of the case.

Therefore, having reviewed the totality of the representation, we conclude 

appellant has not met his burden on his ineffective-assistance claim. See

Robertson v. State, 187 S.W.3d 475, 483 (Tex. Crim. App. 1990) (en banc) (citing 

McFarland v. State, 845 S.W.2d 824, 843, overruled on other grounds by Bingham 

v. State, 915 S.W.2d 9 (Tex. Crim. App. 1992)). We overrule appellant’s second 

issue.

III. EVIDENCE OF EXTRANEOUS OFFENSE

In his third issue, appellant contends the trial court erred by admitting 

evidence of an extraneous offense of indecency with a child because under Texas 

Rule of Evidence 403, its probative value was substantially outweighed by the 

danger of unfair prejudice. See Tex. R. Evid. 403 (providing that the court “may 

exclude relevant evidence if its probative value is substantially outweighed by a 

danger of one or more of the following: unfair prejudice, confusing the issues, 

misleading the jury, undue delay, or needlessly presenting cumulative evidence.”). 

Here, appellant lodged numerous objections at trial challenging the 

admissibility of witness testimony. He never asserted a Rule 403 objection as to 

the extraneous offense of indecency with a child. Thus, because appellant urges a 

different legal theory on appeal than what he presented to the trial court, he has 

waived his Rule 403 argument. See Tex. R. App. P. 33.1(a) (requiring that to 

preserve appellate complaint, party must present objection to trial court with 

sufficient specificity to make trial court aware of complaint, and obtain ruling);

Wilson v. State, 71 S.W.2d 346, 349 (Tex. Crim. App.2002) (holding that to 

preserve error, the complaining party’s trial objection must be the same as the

appellate complaint). We overrule appellant’s third issue.
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Having overruled appellant’s three issues, we affirm.

/s/ John Donovan

Justice

Panel consists of Justices Christopher, Donovan, and Wise.

Publish — Tex. R. App. P. 47.2(b).