Opinion filed October 21, 2010

In The

Eleventh Court of Appeals 

__________

No. 11-09-00065-CR

__________

DUSTY GUS HERNANDEZ, Appellant

V.

STATE OF TEXAS, Appellee

On Appeal from the 238th District Court

Midland County, Texas

Trial Court Cause No. CR33037

M E M O R A N D U M O P I N I O N

Dusty Gus Hernandez pleded guilty to two counts of aggravated sexual assault of a child 

and to one count of indecency with a child. The jury assessed his punishment at life for each of 

the aggravated assault counts, twenty years for the indecency count, and a $10,000 fine for each 

count. We affirm.

I. Issues

Hernandez challenges his sentence with two issues. Hernandez contends that the trial 

court abused its discretion by admitting his taped statement into evidence and that his sentence is 

disproportionate to the crime.
2

II. Discussion

A. Hernandez’s Taped Statement.

Hernandez argues initially that the trial court abused its discretion by admitting his 

recorded interview into evidence. Midland Police Detective Nancy Compton was assigned to 

investigate the allegations against Hernandez. Based upon the results of her investigation, an 

arrest warrant was issued and Hernandez was taken into custody by the Burleson Police 

Department. Detective Compton traveled to Burleson and interviewed Hernandez. That 

interview was recorded, and the State offered into evidence a recording of the interview. 

Hernandez objected, contending that, because he had entered a guilty plea, any probative value 

would be outweighed by the danger of unfair prejudice. The trial court took the objection under 

advisement pending a review of the recording. During a lunch break, the trial court listened to 

the one hour and twenty-seven minute recording and announced its finding that the recording had 

probative value that was not outweighed by any unfair prejudicial effect.

We review the trial court’s admission of evidence under an abuse of discretion standard. 

Weatherred v. State, 15 S.W.3d 540, 542 (Tex. Crim. App. 2000). A trial court does not abuse 

its discretion if its ruling is within the zone of reasonable disagreement. Id. We will uphold a 

trial court’s evidentiary ruling if it is reasonably supported by the record and is correct under any 

theory of applicable law. Martin v. State, 173 S.W.3d 463, 467 (Tex. Crim. App. 2005). 

Texas Rule of Evidence 403 provides that relevant evidence may be excluded if its 

probative value is substantially outweighed by the danger of unfair prejudice. TEX. R. EVID. 403. 

Evidence is unfairly prejudicial when it tends to have some adverse effect upon the defendant 

beyond tending to prove the fact or issue that justifies its admission into evidence. Casey v. 

State, 215 S.W.3d 870, 879 (Tex. Crim. App. 2007). In conducting the balancing test regarding 

admissibility, the trial court must balance (1) the inherent probative force of the proffered item of 

evidence along with (2) the proponent’s need for the evidence against (3) any tendency of the 

evidence to suggest a decision on an improper basis, (4) any tendency of the evidence to confuse 

or distract the jury from the main issue, (5) any tendency of the evidence to be given undue 

weight by a jury that has not been equipped to evaluate the probative force of the evidence, and 

(6) the likelihood that presentation of the evidence will consume an inordinate amount of time or 

repeat evidence already admitted. Id. at 880.
3

Evidence is relevant to sentencing if it helps the factfinder in determining the appropriate 

sentence for a particular defendant in a particular case. Hayden v. State, 296 S.W.3d 549, 552 

(Tex. Crim. Appp. 2009). Hernandez does not dispute the relevancy of his statement but argues 

that his statement was unfairly prejudicial because it portrayed him as denying the offense and 

blaming others and that it was played to the jury simply to play on the jury’s emotions by casting 

him as a liar who did not accept responsibility for his actions. If the statement cast Hernandez in 

that role, it is only because that is exactly what happened during the interview. He denied the 

allegations, told Detective Compton that he had been the victim of sexual abuse, and said that he 

would never do anything like that to a child. He blamed his wife for putting thoughts into the 

children’s heads about sex and said that a child at school could have touched the victim. In 

contrast to this, his counsel told the jury in her opening statement that Hernandez would be 

asking for probation and, in support of this request, said:

You know now from the State and from Dusty himself that he’s entered a plea of 

guilty to the indictment for the counts against him. That decision was not easy. It 

was very hard, but he has admitted guilt and he wants to accept responsibility for 

what happened.

Hernandez was entitled to ask the jury to consider his plea of guilty when determining the 

appropriate sentence. But it is not unfairly prejudicial for the State to respond by showing the 

jury that he initially denied any responsibility and that he blamed others. The trial court did not 

abuse its discretion by admitting the recording of Hernandez’s interview. Issue One is overruled.

B. Was Hernandez’s Punishment Disproportionate to His Crime? 

Hernandez acknowledges that punishment assessed within a statutory limit is generally 

not excessive, cruel, or unusual punishment and that his punishment was within the statutory 

limit. Kirk v. State, 949 S.W.2d 769, 772 (Tex. App.—Dallas 1997, pet. ref’d). He argues, 

however, that his sentence violates the Eighth Amendment because it is grossly disproportionate 

to the offense.1 Texas courts have found that a prohibition against grossly disproportionate 

sentences survives under the federal constitution apart from any consideration of whether the 

punishment assessed is within the statute’s range. Delacruz v. State, 167 S.W.3d 904, 906 (Tex. 

App.—Texarkana 2005, no pet.). 

 

1The Eighth Amendment provides: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and 

unusual punishments inflicted.” U.S. CONST. amend VIII.
4

Texas courts have followed the Fifth Circuit’s analysis for addressing Eighth Amendment 

proportionality complaints. McGruder v. Puckett, 954 F.2d 313 (5th Cir. 1992). This requires 

that we first conduct a threshold comparison of the gravity of the offense underlying the current 

conviction as well as the offenses underlying any prior convictions against the severity of the 

sentence. Id. at 316. The test is whether the sentence is grossly disproportionate to the gravity 

of the offenses upon which the sentences are based. See Winchester v. State, 246 S.W.3d 386, 

390 (Tex. App.—Amarillo 2008, pet. ref’d). We consider the gravity of the offense in light of 

the harm caused or threatened to the victim or society and the culpability of the offender. 

Solem v. Helm, 463 U.S. 277, 291-92 (1983).

Hernandez argues that his sentence was grossly disproportionate considering his 

witnesses and his mitigating evidence and that he is in need of counseling rather than a life 

sentence because of his tragic childhood. The State responds that this issue has not been 

preserved because he did not object to the sentence when it was pronounced or file a motion for 

new trial. We agree. Preservation of a complaint for appeal requires that the appealing party 

make a complaint to the trial court by a timely request, objection, or motion stating the grounds 

for the desired ruling if those grounds are not apparent from the context of the request, objection, 

or motion. TEX. R. APP. P. 33.1(a)(1)(A). The reason for this rule is to give the trial court notice 

of what ruling, procedure, or statement the trial court has engaged in that is contrary to our laws 

and procedure and the opportunity to correct the mistake. Kim v. State, 283 S.W.3d 473, 475 

(Tex. App.—Fort Worth 2009, pet. ref’d). This requirement applies equally to a complaint that 

the sentence is grossly disproportionate. See id. Issue Two is overruled.

III. Conclusion

The judgment of the trial court is affirmed. 

RICK STRANGE

JUSTICE

October 21, 2010

Do not publish. See TEX. R. APP. P. 47.2(b).

Panel consists of: Wright, C.J.,

McCall, J., and Strange, J.