### TEXA S COU RT O F AP PEAL S, THIR D DISTRIC T, AT AU STIN

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4444 NO. 03-99-00610-CR

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4444 Brian Kevin Jon es, Appel lant
v. The State of Texas , Appellee

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4444444444 FROM THE DISTRICT CO URT OF TRAVIS COUNTY, 147T H JUDICIAL DIST RICT NO. 0992796, HONORABLE FRED A. MOORE, JUDGE PRESIDI NG

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4444444444 Appellant Brian Kevin

Jones was convi cted o f the offen se of sexua l assaul t. See Tex. Penal Cod e An n. § 22.0 11 (W est Su pp. 200 0). In asses sing appellant’s punishment, the jury found thatappellant had previously been c onvicted in the State of Virgini a for the offense of rape. Th erefore, the appel lant’s p unish men t is m andat ory im prisonm ent for l ife. SeeTex. Penal Code Ann. § 12 .42 (c )( 2) (A) (i) , ( c) (2 )( B)( ii) , ( c) (2 )( B) (v) , (g)(1), (g)(2) (We st Sup p. 2000 ).

In eight points of error, appellant contendsthat: (1) the evidence is f actually insufficient

to support the jury’ s verdict; (2)the State failed to g ive pr oper notice of the punishment sought; (3) the evidenc e does not support the punis hment assess ed; (4) he received ineffective assistance of

counsel; and (5) the punishment assessed was cr ue l or unu su al . Wewill
overr ule appe llant’spoints of error and

aff irm the judgment. App ellan t’s eighthpoint of error is stated in question for

m: “Was the evidence in this case fac tually insufficient to suppor t a finding of guilt? (Entire Recor d ).” Because2

appellant has failed

to fur ther br ief thispoint of

error, it is not properly

pres ented f

or app ellate
re vie w; it wil l be ov erruled. See Tex. R . App . P. 38.1 (h); Mc Du ff v. Sta te, 939 S.W.2d 607, 613 (Tex. Crim. App. 1997 ); Huerta v. State , 933 S.W.2d 648, 650 (Tex. App.—San Antonio 1996, no pet .). In his first a nd secondpoints of err

or, appellant complains that he was not given notice by the allegations of the indictment that the State was seekin g puni shm ent of m andat ory life im prisonm ent; t herefore, th e jury charg e th at all owe d puni shm ent of m andat ory life imprisonment deprived him of his state constitutional r ight to due course of la

w and violated Article 36.14 of

the Code of Criminal Procedure. Tex. Co de Crim . Proc. Ann. art. 36.14 (W est Supp . 2000). The Penal Code as it relates to this ca se provides that a de fendant shall be punishedby imprison

ment for l ife if

the def endant isconvicte d of s exual a ssault and the defendant

has been previous ly convicted under the laws of

another state of an off

ense containing elements that are substantially s imilar to the elements of the offense of sex ual assa ult. SeeTex. Penal Cod e An n. § 12.4 2(c)(2)(A)(i ), (c)(2)(B)(ii), (v ) (West S upp. 20 00).

Appellant was convi cted of the prim ary offense of sexual ass ault. One of the three prior convictions alleged to enhance appellant’ s punishment was that appellant had been convicted“of Rape, on A pril 11, 1989, in Cause Number CR 89-143 in the Circuit Court of the City of Roanoke, Virginia.” Appellant argues that be cause the State failed to allege that the offense of “rape”was “substantially similar” to t he offens e of “sexual as sault,” the pleading failedto give him notice that the State was seeking punishment of mandato ry lif e imprison

ment.1 In addition to alleging the prior ra pe conviction, the State alleged that appellant had previo uslybeen co nvicted i n Virginia o f the of fens e of cr

editcard the ft. The jury did not make any fin ding on whethe r appe llant had been co nvicted o f credit car d theft
. 3 “Rape” has been defined a s “the un lawful carna l knowledge of a woman by a man for

cibly against her will.” Black’s Law Diction ary 126 0 (West 6th ed. 1990). The offense of rape contains elements that are substantially similar to the el eme ntsof se xual a ss au lt. We hold that rape and sex ual assa ult are off enses that are substantially s imilar as a matter of law. It was
unnec essary for the State to allege that thes e offens es were substantially similar in order to give appellant notice th at the pun ishment coul d be mandator y life imprisonment. The tria l court did not err in char

ging the jury. Appellant’s fir st and second points of error are overr uled. In his third point of er

ror, appe llant declares that he did not ha ve eff ective assistanceof counsel. The jury ch arge on p unish men t all owe d for pun ishm ent of m andat ory life imprisonment. Appellant contends that counse l was inef fecti ve beca

use hefaile d to objec t to that charge on the ground tha t the State’s pleading failed to give notic e that the State was seeking punishment of mandatory life imprisonment. We have held that the notice given appellant by the State’s pleading was suff icient. Therefore, counsel wa s not ineffective becau se he failed to object to the jury char ge on the lack-of- notice ground. Appellant’s third point of
error is overruled.

In his fourt h poi nt of error, appellant urges that the “tr ial court erred in submitting the questio n to the jury of whether appellant was the same person who was finally convicted of felonies in Virginia f

or pur poses of enh ancement when th e eviden ce was leg allyinsufficient to prove that either of the convictions had be com e final as alle ged.” 1 Appellant’s contention is not4

that he was not th e pers on convic ted of r ape in Virg inia; his contenti on is th at there was a variance between the alleg ation that t he rape co nvict ion w as a final convi ction and th e failu re of proof to show that the co nvicti on was a final conviction. Generally, convic tions used for enhancement of puni shm ent m ust be fi nal co nvict ions. See, e.g ., Ex parte Langley , 833 S.W.2d 141, 143 (Tex . Crim. App. 1 992); Harve y v. State , 611 S.W.2d108, 111 (Tex. C rim. A pp. 198 1); Ex parte Murchison , 560 S.W.2d 654, 656 (Tex. Crim. App. 1978). However, the Penal Code provides that for the purpos e of asse ssing punishment pursuant to sec tion 12.42( c)(2) , the p rev ious convi ction need n ot be a final c onvi ction
. SeeTex. Penal Code Ann. § 12.42(g)(1) (West Supp . 2000).

The jury’s fi nding that appellant was guilty of the primary off ense of se xual
assa ult and that appellant had been previous ly convicted of rape in Virginia even though that conviction might no t have bee n a final convi ction required puni shm ent of m andat ory life imprisonment. Assuming that the State failed to prove that the alleged previousconviction for rape in Virginia wasa fina l conviction, tha t was not a f

atal var iance. Any error, d efec t, irregularity, or varianc e, othe r t han co nstit utio nal error, t hat do es not a ffect a defe ndant ’s substantial rights mu st be di sregarded . Tex. R . App . P. 44.2 (b). Even before the ef fecti ve date of Rule 44.2(b), the strict rule against a variance between enhancement pleadings and proof

had been relax ed. “[ T]he rigid rul e that a mere or s light var ia nce between what w as alleged and what was proved was sufficient to render the evidenc e insufficient no longer applies.” Homan
v. State , 749 S.W.2d 832, 836 (Tex. Crim . App . 1988); see also, Fred a v. State , 704 S.W.2d 41, 43 (Tex. Crim. App. 1986 ); Davey v . State , 989 S.W.2d 52, 54-55 (Tex. App.—Dallas 1998, no5

pet.); William

s v. State , 980 S.W.2d 222, 226-27 (Tex. App.—Houston [1 4th Dist.] 1998, pe t. ref’d). Appellant’ s complaint a bout the ju

ry cha rge iswithout m erit. The four th point of

error is overruled. In his fifth poin t of e rro r, appellant complains that counsel was inef fective for f ailing to object t o thi s same jury ch arge. H aving ruled t hat th e trial court did n ot err i n submitting the challenged jury charge, we hold that counse l’s f ailureto object

to the cha

rge did not demonstrate ineffec tive assistance of counsel. The fif

th point of error

is overruled. In his sixth point of err

or, appellant contendstha t his court-appointed lawyer failedto give him eff

ective a ssis tance be causecounse l faile d to advis e him of the possibility he could receive punishment of mandatory life imprisonment. We are unable to inf er from the parts of the record des ignated that appellant was not counseled concer ning the possibility thathe faced punishment of ma ndato ry life imprison men t. The record do es not su pport a ppell ant’s contention. The sixth point of err or is overr

uled. In his seventh poi nt of error , appellant asse rts that insofar as it applies to nonaggravated

sexua l assa

ult s, sect ion 12.42(c)( 2)(A), ( B) of the Penal Code providing for
man datory life imprisonment violates article I, § 13 of the Texas Constitution. Appellant relies only on the state constitution, contending that the s tate constitution gives him greater protection than d oes the federal co nstit utio n. See U.S. Const. amend. XIII; Tex. Const. ar t. 1, § 13. Appellant points ou

t that the l anguageof the s tate con stitution prohibi ts cr

uel or unusual punishment while the federal constitution prohibi ts cr uel and unu su al pun is hme nt. We do not find that this diffe rence in language in our state constitution gives a ny greater

protection6

against disproportionate punis hment than does the Eighth Amendment. See Fr ancis v . State , 877 S.W.2d 441, 443 -44 ( Tex. App.—Austin 1 994, pe t. ref ’d); Dunn v. Stat

e , 997 S.W.2d 885, 891 (Tex. App .—W aco 19 99, pet . ref’d); Pu ga v. State , 916 S.W.2d 547, 550 (Tex. App.—San Ant onio 1996, n o pet.).

App ellant urges us to f

ollow the Unit ed States Supreme Court’s analys is fo r determining whethe r punishm ent is disproporti onate, considering (1) the gravity of the offense
an d the ha

rs hn es s o f t

he pe na lty, (2 ) t

he puni shment i mpo se d o n o th er de fe nd ants inth e s ame jurisdiction, and ( 3) the punishment imposed for the commission of the s ame off ense in other jurisdiction s. Solem v. Hel m , 463 U .S. 277 , 291-92 (1983). A fter Solem , the S uprem e Cou rt decided Harmelin v. Michigan , 501 U.S. 957 (1991); the several opinions in that case muddied the water and left much uncertainty. The United States Court of Appeals for the FifthCircuit has fully discus sed Solem and Harme lin and concluded: By applying a head-count analys is, we find that seven mem bers of the C ourt supported

a continued Eighth A m endment guarantee against disproportional senten ces. On ly four j ustice s, how ever, supported the continued application of all three factor s in Solem , and fiv e justi ces reject ed it. T hus, th is m uch is c lear: disp ropor

tionality surv ives; Solem does no t. Only Jus tice Kenned y’s o pinio n ref lects that v iew . It is to his op inio n, therefo re, that we turn for direction. Accordingly, we will ini tially make a thr eshold co mparison of the gravity of McGruder’ s off

ensesagains t the se verity of hisse nte nc e. Only

if we infer that the sentence is grossly dispropor tionate to the offensewill w e then consider the remaining factors of

the Solem test and compare the sentence r ecei ved t o (1) sentences for simil ar crimes in the same jurisdiction and ( 2) sentencesfor the same crim e in other jurisdi ctions.
McGrude r v. Puc kett , 954 F .2d 313 , 316 (5t h Ci r. 1992).2 Mo reover, appellant has fai led to furnish arecord made either at tr ial oron the hearing of a motion for new trial that includesevidence which wou ld all ow u s to com pare the punishment received in this cas e with punishment received for similar crimes in

this and other jurisdiction s. The enormous task of fur nishing such a rec or d in most cases would preclude review of any more than the firs t step of the Solem analysis. 7 Following the Fifth Circuit, we will compare the gravity of appellant’s off

enses ag ainst the sev erity o f his s entence . In th is cas e, app ellant was convicte d of s exual a ssaul t accomplished by phy sical fo rce and v iolen ce. The jury also found appe llant had previously been
conv icted of rape. Both offenses ar e substantially similar and involve physical f orce an d violence. Both offenses ar e calculated to cause emotional harm to victims. The severity of punishment of mandato ry lif e imprison

ment is not dispr oportionate to the gravity of s exual
assa ult and rape. We need

go no further with the Solem analy sis. See Dunn , 997 S.W.2d at 891. 2

Punishment of mandatory life imprisonment under the Texas re cidivi s t statute has been uphel d by t he Sup reme C ourt. See Rumme l v . Estelle , 445 U .S. 263 , 285 (19 80). In Rummel , the Supreme Court held t h at punishment of mandatory life imprisonment was not gros slydisproportionate and was not cr uel and unusual when the defendant had been convicted of non-violent and less s erious off enses than those committed by th is appe llant
. Id. at 265-66. We hold that section 12.42(c) (2)(A), (c)( 2)(B) of theTexas Penal Code providing man datory life imprisonment for non-aggravated sexual assault s d oes not vi olate article I, § 13 of the Texas Constitution. Appellant’s seventh point of er ror is over

ruled.8 The judgment is affirmed.

Carl E. F. Dall

y, Jus tice Be fo r e J us t ice s J o ne s, B. A. Smit h a nd Da lly * Af fi rmed File d: Novem

ber 9, 2000 Do No t Publis

h

* Before C arl E. F . Dal ly, Jud ge (retire d), Cou rt of Criminal Appeals, sitting by assignment. SeeTex. G ov’t C ode A nn. § 74 .003(b) (W est 199 8).