TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

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NO. 03-99-00610-CR

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Brian Kevin Jones, Appellant

v.

The State of Texas, Appellee

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FROM THE DISTRICT COURT OF TRAVIS COUNTY, 147TH JUDICIAL DISTRICT

NO. 0992796, HONORABLE FRED A. MOORE, JUDGE PRESIDING

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Appellant Brian Kevin Jones was convicted of the offense of sexual assault. See

Tex. Penal Code Ann. § 22.011 (West Supp. 2000). In assessing appellant’s punishment, the

jury found that appellant had previously been convicted in the State of Virginia for the offense

of rape. Therefore, the appellant’s punishment is mandatory imprisonment for life. See Tex.

Penal Code Ann. § 12.42(c)(2)(A)(i), (c)(2)(B)(ii), (c)(2)(B)(v), (g)(1), (g)(2) (West Supp. 2000).

In eight points of error, appellant contends that: (1) the evidence is factually

insufficient to support the jury’s verdict; (2) the State failed to give proper notice of the

punishment sought; (3) the evidence does not support the punishment assessed; (4) he received

ineffective assistance of counsel; and (5) the punishment assessed was cruel or unusual. We will

overrule appellant’s points of error and affirm the judgment.

Appellant’s eighth point of error is stated in question form: “Was the evidence in

this case factually insufficient to support a finding of guilt? (Entire Record).” Because
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appellant has failed to further brief this point of error, it is not properly presented for appellate

review; it will be overruled. See Tex. R. App. P. 38.1(h); McDuff v. State, 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 and second points of error, appellant complains that he was not given

notice by the allegations of the indictment that the State was seeking punishment of mandatory

life imprisonment; therefore, the jury charge that allowed punishment of mandatory life

imprisonment deprived him of his state constitutional right to due course of law and violated

Article 36.14 of the Code of Criminal Procedure. Tex. Code Crim. Proc. Ann. art. 36.14 (West

Supp. 2000).

The Penal Code as it relates to this case provides that a defendant shall be

punished by imprisonment for life if the defendant is convicted of sexual assault and the

defendant has been previously convicted under the laws of another state of an offense containing

elements that are substantially similar to the elements of the offense of sexual assault. See Tex.

Penal Code Ann. § 12.42(c)(2)(A)(i), (c)(2)(B)(ii), (v) (West Supp. 2000).

Appellant was convicted of the primary offense of sexual assault. One of the three

prior convictions alleged to enhance appellant’s punishment was that appellant had been

convicted “of Rape, on April 11, 1989, in Cause Number CR 89-143 in the Circuit Court of the

City of Roanoke, Virginia.” Appellant argues that because the State failed to allege that the

offense of “rape” was “substantially similar” to the offense of “sexual assault,” the pleading

failed to give him notice that the State was seeking punishment of mandatory life imprisonment.
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 In addition to alleging the prior rape conviction, the State alleged that appellant had

previously been convicted in Virginia of the offense of credit card theft. The jury did not make

any finding on whether appellant had been convicted of credit card theft.

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“Rape” has been defined as “the unlawful carnal knowledge of a woman by a man forcibly

against her will.” Black’s Law Dictionary 1260 (West 6th ed. 1990). The offense of rape

contains elements that are substantially similar to the elements of sexual assault. We hold that

rape and sexual assault are offenses that are substantially similar as a matter of law. It was

unnecessary for the State to allege that these offenses were substantially similar in order to give

appellant notice that the punishment could be mandatory life imprisonment. The trial court did

not err in charging the jury. Appellant’s first and second points of error are overruled.

In his third point of error, appellant declares that he did not have effective

assistance of counsel. The jury charge on punishment allowed for punishment of mandatory life

imprisonment. Appellant contends that counsel was ineffective because he failed to object to

that charge on the ground that the State’s pleading failed to give notice that the State was

seeking punishment of mandatory life imprisonment. We have held that the notice given

appellant by the State’s pleading was sufficient. Therefore, counsel was not ineffective because

he failed to object to the jury charge on the lack-of-notice ground. Appellant’s third point of

error is overruled.

In his fourth point of error, appellant urges that the “trial court erred in submitting

the question to the jury of whether appellant was the same person who was finally convicted of

felonies in Virginia for purposes of enhancement when the evidence was legally insufficient to

prove that either of the convictions had become final as alleged.”1 Appellant’s contention is not
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that he was not the person convicted of rape in Virginia; his contention is that there was a

variance between the allegation that the rape conviction was a final conviction and the failure

of proof to show that the conviction was a final conviction. Generally, convictions used for

enhancement of punishment must be final convictions. See, e.g., Ex parte Langley, 833 S.W.2d

141, 143 (Tex. Crim. App. 1992); Harvey v. State, 611 S.W.2d 108, 111 (Tex. Crim. App. 1981);

Ex parte Murchison, 560 S.W.2d 654, 656 (Tex. Crim. App. 1978). However, the Penal Code

provides that for the purpose of assessing punishment pursuant to section 12.42(c)(2), the

previous conviction need not be a final conviction. See Tex. Penal Code Ann. § 12.42(g)(1)

(West Supp. 2000).

The jury’s finding that appellant was guilty of the primary offense of sexual

assault and that appellant had been previously convicted of rape in Virginia even though that

conviction might not have been a final conviction required punishment of mandatory life

imprisonment. Assuming that the State failed to prove that the alleged previous conviction for

rape in Virginia was a final conviction, that was not a fatal variance. Any error, defect,

irregularity, or variance, other than constitutional error, that does not affect a defendant’s

substantial rights must be disregarded. Tex. R. App. P. 44.2(b). Even before the effective date

of Rule 44.2(b), the strict rule against a variance between enhancement pleadings and proof had

been relaxed. “[T]he rigid rule that a mere or slight variance between what was alleged and

what was proved was sufficient to render the evidence insufficient no longer applies.” Homan

v. State, 749 S.W.2d 832, 836 (Tex. Crim. App. 1988); see also, Freda 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, no
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pet.); Williams v. State, 980 S.W.2d 222, 226-27 (Tex. App.—Houston [14th Dist.] 1998, pet.

ref’d). Appellant’s complaint about the jury charge is without merit. The fourth point of error

is overruled.

In his fifth point of error, appellant complains that counsel was ineffective for

failing to object to this same jury charge. Having ruled that the trial court did not err in

submitting the challenged jury charge, we hold that counsel’s failure to object to the charge did

not demonstrate ineffective assistance of counsel. The fifth point of error is overruled.

In his sixth point of error, appellant contends that his court-appointed lawyer

failed to give him effective assistance because counsel failed to advise him of the possibility he

could receive punishment of mandatory life imprisonment. We are unable to infer from the parts

of the record designated that appellant was not counseled concerning the possibility that he faced

punishment of mandatory life imprisonment. The record does not support appellant’s

contention. The sixth point of error is overruled.

In his seventh point of error, appellant asserts that insofar as it applies to nonaggravated sexual assaults, section 12.42(c)(2)(A), (B) of the Penal Code providing for

mandatory life imprisonment violates article I, § 13 of the Texas Constitution. Appellant relies

only on the state constitution, contending that the state constitution gives him greater protection

than does the federal constitution. See U.S. Const. amend. XIII; Tex. Const. art. 1, § 13.

Appellant points out that the language of the state constitution prohibits cruel or

unusual punishment while the federal constitution prohibits cruel and unusual punishment. We

do not find that this difference in language in our state constitution gives any greater protection
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against disproportionate punishment than does the Eighth Amendment. See Francis v. State, 877

S.W.2d 441, 443-44 (Tex. App.—Austin 1994, pet. ref’d); Dunn v. State, 997 S.W.2d 885, 891

(Tex. App.—Waco 1999, pet. ref’d); Puga v. State, 916 S.W.2d 547, 550 (Tex. App.—San

Antonio 1996, no pet.).

Appellant urges us to follow the United States Supreme Court’s analysis for

determining whether punishment is disproportionate, considering (1) the gravity of the offense

and the harshness of the penalty, (2) the punishment imposed on other defendants in the same

jurisdiction, and (3) the punishment imposed for the commission of the same offense in other

jurisdictions. Solem v. Helm, 463 U.S. 277, 291-92 (1983). After Solem, the Supreme Court

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 Fifth Circuit

has fully discussed Solem and Harmelin and concluded:

By applying a head-count analysis, we find that seven members of the Court

supported a continued Eighth Amendment guarantee against disproportional

sentences. Only four justices, however, supported the continued application of

all three factors in Solem, and five justices rejected it. Thus, this much is clear:

disproportionality survives; Solem does not. Only Justice Kennedy’s opinion

reflects that view. It is to his opinion, therefore, that we turn for direction.

Accordingly, we will initially make a threshold comparison of the gravity of

McGruder’s offenses against the severity of his sentence. Only if we infer that

the sentence is grossly disproportionate to the offense will we then consider the

remaining factors of the Solem test and compare the sentence received to (1)

sentences for similar crimes in the same jurisdiction and (2) sentences for the

same crime in other jurisdictions.

McGruder v. Puckett, 954 F.2d 313, 316 (5th Cir. 1992).
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 Moreover, appellant has failed to furnish a record made either at trial or on the

hearing of a motion for new trial that includes evidence which would allow us to compare the

punishment received in this case with punishment received for similar crimes in this and other

jurisdictions. The enormous task of furnishing such a record in most cases would preclude

review of any more than the first step of the Solem analysis.

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Following the Fifth Circuit, we will compare the gravity of appellant’s offenses

against the severity of his sentence. In this case, appellant was convicted of sexual assault

accomplished by physical force and violence. The jury also found appellant had previously been

convicted of rape. Both offenses are substantially similar and involve physical force and

violence. Both offenses are calculated to cause emotional harm to victims. The severity of

punishment of mandatory life imprisonment is not disproportionate to the gravity of sexual

assault and rape. We need go no further with the Solem analysis. See Dunn, 997 S.W.2d at 891.2

Punishment of mandatory life imprisonment under the Texas recidivist statute has

been upheld by the Supreme Court. See Rummel v. Estelle, 445 U.S. 263, 285 (1980). In

Rummel, the Supreme Court held that punishment of mandatory life imprisonment was not

grossly disproportionate and was not cruel and unusual when the defendant had been convicted

of non-violent and less serious offenses than those committed by this appellant. Id. at 265-66.

We hold that section 12.42(c)(2)(A), (c)(2)(B) of the Texas Penal Code providing mandatory life

imprisonment for non-aggravated sexual assaults does not violate article I, § 13 of the Texas

Constitution. Appellant’s seventh point of error is overruled.
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The judgment is affirmed.

 

Carl E. F. Dally, Justice

Before Justices Jones, B. A. Smith and Dally*

Affirmed

Filed: November 9, 2000

Do Not Publish

* Before Carl E. F. Dally, Judge (retired), Court of Criminal Appeals, sitting by assignment.

See Tex. Gov’t Code Ann. § 74.003(b) (West 1998).