Salvador Garza Jr. v. the State of Texas

In The

Court of Appeals

Ninth District of Texas at Beaumont

________________
NO. 09-23-00122-CR
________________

SALVADOR GARZA JR., Appellant

V.

THE STATE OF TEXAS, Appellee
________________________________________________________________________

On Appeal from the 359th District Court
Montgomery County, Texas
Trial Cause No. 20-09-10542-CR
________________________________________________________________________

MEMORANDUM OPINION

A grand jury indicted Salvador Garza Jr. (“Garza”) for the offense of sexual

assault of a child, a second-degree felony punishable by two to twenty years

imprisonment and a fine not exceeding $10,000. See Tex. Penal Code Ann. §§ 12.33,

22.011(a)(2)(A), (f). Garza waived his right to a jury trial, and in an open plea to the

trial court, Garza pleaded guilty to the offense charged. The trial court found Garza

guilty and scheduled a sentencing hearing approximately two months after the plea
1
hearing to allow time for the State to complete a pre-sentence investigation. After

considering evidence from the State and Garza, the trial court sentenced Garza to ten

years in the Institutional Division of the Texas Department of Criminal Justice.

The trial court certified Garza’s right to appeal his sentence only. He now

appeals his sentence, arguing 1) that he should be resentenced, and 2) that his

conviction and sentence should be reversed and the matter remanded for a new trial

because “[t]he trial court did not afford [Garza] consideration for cooperating when

sentencing him, thus violating his fundamental right to a fair judicial process.” He

contends that the trial court “must provide an articulable benefit of what the

defendant received in exchange for the plea.” Garza does not argue that the sentence

violated a plea bargain agreement for a specific or a maximum sentence.

For the reasons discussed below, we will affirm the trial court’s judgment.

I. Background

A. The Offense

During the summer of 2020, “Kylie” was staying with her Aunt in the Houston

area. 1 Kylie was a member of Garza’s extended family, and was then sixteen years

1We use pseudonyms to refer to the victim, a minor, and we refer to her family

members other than Garza by their relationship to the victim to protect the victim’s
privacy. See Tex. Const. art. I, § 30(a)(1) (granting crime victims “the right to be
treated with fairness and with respect for the victim’s dignity and privacy throughout
the criminal judicial process”).
2
old, while Garza was in his forties. Garza and his parents also lived in the Aunt’s

home, as did the Aunt’s minor children.

One evening in August, after Garza had been drinking, he and Kylie were

sitting outside in folding lawn chairs. When Kylie stood up, Garza grabbed her and

sat her on his lap. He then sexually assaulted her by inserting his finger into her

vagina.

The indictment alleged that Garza, “on or about August 23, 2020, and before

the presentment of this indictment, . . . did then and there intentionally or knowingly

cause the defendant’s finger to penetrate the sexual organ of K.G., a child.”

B. The Guilty Plea

Garza signed the Admonitions to the Defendant for Plea to the Court, and

Supplemental Admonitions to the Defendant for Sex Offender Registration

Requirements, which reflect his understanding that he was pleading guilty to a

second-degree felony with a penalty range of two to twenty years in prison and a

fine not to exceed $10,000. These admonitions further apprised Garza of his

responsibility to register as a sex offender. See Tex. Code Crim. Proc. Ann. art.

62.051(a) (requiring sex offender registration for certain offenses).

At the plea hearing, the trial court indicated there was not an agreed

sentencing, and Garza would be entering an “open plea.” The trial court then

3
admonished Garza as required by the Texas Code of Criminal Procedure and

inquired into Garza’s mental competence to plead guilty as well as the voluntariness

of his plea. See id. art. 26.13(a), (b) (outlining required court admonishments before

accepting a guilty plea). The following exchanges took place between Garza and the

trial court:

THE COURT: Sir, you were charged with the offense of sexual assault
of a child. And that is a second-degree felony, which means it carries a
punishment range of not less than two years and not more than 20 years
in the Institutional Division of the Texas Department of Criminal
Justice and in addition, a fine not to exceed $10,000 may be assessed.
Do you understand that?

A. Yes, ma’am.

Q. Are you a citizen of the United States?

A. I am.

Q. Do you read, write and speak the English language?

A. I do.

Q. Are you able to hear what I’m saying?

A. Yes, ma’am.

Q. I have before me admonishments, statements, and waivers which seem to
have your signature on the second page. Is this your signature?

A. It is.

Q. Did you sign this document?

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A. Yes, I did.

Q. Before you signed it, did you read and discuss it with your attorney?

A. We did.

Q. Did you understand everything you read and discussed?

A. Yes, ma’am.

Q. Have you ever been found incompetent by a court of law?

A. No, ma’am. No.

Q. Has a doctor ever said that you had mental health problems?

A. No, ma’am.

Q. Okay.

...

Q. Mr. Garza, I also have State’s Exhibit No. 1, a stipulation of
evidence, which again appears to have your signature. Is this your
signature, sir?

A. Yes, ma’am.

Q. Did you sign this document?

A. Yes, ma’am.

Q. Did you sign it freely and voluntarily?

A. Yes, ma’am.

Q. And is it true and correct? It’s your confession actually is what it is.

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[DEFENSE COUNSEL]: Your statement of guilty.

A. Yes. Yes.

The trial court also asked Garza’s counsel whether Garza understood the

consequences of the plea or whether counsel had any reason to believe that Garza

was not competent, to which counsel replied that Garza did appreciate the

consequences of the plea and was not incompetent. In response to questions from

his attorney, Garza confirmed that he understood the lifetime requirement to register

as a sex offender and the parole law explanation counsel previously provided. Garza

also indicated that he was ready to enter a plea and put himself in the judge’s hands.

The trial court then asked:

Q. Mr. Garza, how do you plead to the allegation contained in this cause
in which you are charged with committing the offense of sexual assault
of a child?

A. I plead guilty.

Q. I’m sorry?

A. Guilty.

Q. Has anyone forced you to say that?

A. No, ma’am.

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After accepting Garza’s plea and finding him guilty, the trial court recessed

the proceedings pending the completion of a pre-sentence investigation. We

summarize below the evidence presented at Garza’s sentencing hearing.

B. Punishment Hearing

Kylie’s Testimony

At the punishment hearing, Kylie testified regarding the offense and how it

impacted her. In remembering the months at her Aunt’s home preceding the assault,

Kylie recalled that she had a “great” time. Not only did she and her relatives,

including Garza, go to the park, the lake, the beach, ride bicycles, take walks, and

work out together, Garza taught her to drive, and other relatives taught her how to

rollerblade. She described conversations she had with Garza throughout the summer.

Kylie then provided detailed testimony about the sexual assault and how it

negatively impacted her. By the time of trial, Kylie had improved, due to therapy

and her parents, who “didn’t let [her] quit anything[,]” and “were there behind –

behind [her] through it all.” Also, she explained how the assault adversely affected

her immediate family’s relationship with the extended family, and Kylie

characterized the change in her parents’ relationship as having gone from “fine

before[]” to “unstable.”

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After Kylie and her family arrived home, the Department of Child Protective

Services became involved, making home visits and interviewing Kylie to ask

whether her parents “had ever done anything to [her] or if they were at fault for any

of this.” The investigative process was difficult for Kylie because she knew her

parents were blameless.

Father’s Testimony

Kylie’s Father testified that before Garza assaulted Kylie, Father and Garza

had a “[p]ositive” relationship. Although Father knew that Garza drank “a lot[,]” he

did not think Garza had a drinking problem, and never expected Garza to do anything

like this.

Father confirmed Kylie’s testimony describing how this event has affected the

family as a whole and Kylie in particular. Specifically, he testified that since that

day, he has rarely seen or spoken to his parents, siblings, or other family members,

and that his relationship with his wife has been “rough.” Father testified that Kylie

appeared to be “getting better,” but was still affected by the assault, as indicated by

her decision not to visit family members.

Detective Cantu’s Testimony

Felix Cantu Jr., (“Cantu”) testified that he was a detective with the

Montgomery County Sheriff’s Office, and at the time of trial, he had been assigned

8
to the Violent Crimes Unit for nearly three years. According to Cantu, although

Garza cooperated with law enforcement, Garza initially was reluctant to speak to

law enforcement, but then admitted his “mistake” and further “admitted to touching

[Kylie] in her vaginal area and having inappropriate contact with her[]” by

penetrating her vagina with his finger. However, Garza also told Cantu that Kylie

“walked over and sat on his lap[,]” and then “moved over to the center of his kind

of, crotch area in between both of his leg[s] and she started to move and rub her

buttocks area against his body.” Garza “stated that [Kylie] appeared as if she was

enjoying herself.” In addition, Garza indicated that Kylie instigated the inappropriate

contact by taking his hand and “plac[ing] his hand in certain parts of her body[.]”

Garza also told Cantu that both he and Kylie had been drinking earlier, and that it

was he, and not Kylie, who ended the contact. He further told Cantu that he

suggested to Kylie that they take a walk together, but she declined, stating that she

was tired. Garza did not indicate to Cantu that Kylie seemed “upset about

anything[]” after Garza assaulted her.

Salvador Garza Jr.’s Testimony

Garza testified that he grew up in the Valley and attended Southwest Texas

State University. As of the time of trial, he worked full time in sales at Rosehill

9
Palms. If granted probation, he intended to continue working there and believed that

he would successfully complete probation, if granted.

Garza admitted to a history of alcohol use, including two arrests for driving

while intoxicated, but has no other criminal history. In relating the events of August

22 and 23, 2020, Garza recalled that he was “[d]rinking a lot.” Due to the amount of

alcohol he had consumed, Garza also did not recall everything that happened that

night, but did recall touching Kylie, he “knew it was wrong[,]” and knew that he was

at fault.

According to Garza, he has complied with all conditions of bond, including

obtaining a drug and alcohol evaluation, attending Alcoholics Anonymous, passing

all his drug tests, attending his probation meetings, and refraining from contact with

Kylie and her family. He also expressed remorse over his actions, stating that he was

“so sorry.” Since committing this offense, Garza has thought about it “every day[]”

and “every night[,]” and understands what he has done to Kylie and the family.

Although Garza remembered speaking with Detective Cantu, he stated that

Cantu confused him, and the events reflected in Cantu’s report do not accurately

reflect what happened. In particular, Garza testified that contrary to what he

apparently told Cantu, as shown in Cantu’s report of the interview, Kylie did not

10
initiate the contact between the two of them and he did not give her any alcoholic

beverages or encourage her to drink.

Garza testified that he cooperated with law enforcement’s investigation of the

offense and voluntarily confessed to the details of it.

Dr. Aleha Cantu’s Testimony 2

Aleha Cantu (“Dr. Cantu”) testified to her educational qualifications, which

include a doctoral degree in clinical psychology with a forensic emphasis. She is a

licensed psychologist with professional experience that includes treating sex

offenders and evaluating sex offenders’ risk for reoffending. Dr. Cantu described

sexual risk mitigation broadly as looking at a variety of historical and dynamic

factors that research has shown to affect an individual’s risk of engaging in sexual

misconduct. Dr. Cantu and “many other experts” use a model supported by the

American Treatment of Sexual Abuser Community (“ATSAC”). To illustrate this

approach to a sex offender’s risk of reoffending, Dr. Cantu noted that having a

“stable” and “healthy” job would be positive factor.

In this case, Dr. Cantu completed psychological and risk assessments

regarding Garza, and she described the process she went through.

2The record indicates that Dr. Cantu is not related to Detective Cantu.

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Dr. Cantu testified that she “typically would provide mitigation evaluations

for people who are charged with serious offenses and who would be looking at long

sentences, and for whom, typically, the defense would like to highlight possible

mitigation to proffer a lower sentence at sentencing.” Dr. Cantu outlined information

she learned about Garza’s background, including his family history, work history,

and relationship history.

She testified that Garza reported current use of alcohol and past use of cocaine,

marijuana, and Ecstasy. Dr. Cantu therefore considered it important to Garza’s

success that he refrain from alcohol use. She observed, however, that except one

missed test, Garza’s PSI showed that he had complied with the terms of his bond,

including passing tests for drug and alcohol use. Garza also reported symptoms

consistent with intermittent mild depression as a young adult and consistent with

depression as of the time of the offense.

For Garza’s evaluation, Dr. Cantu used a personality assessment, the MMPI-

3, and structured risk assessment tools such as the Static-99R and the Sex Offender

Intervention and Progress Scale (“SOTIPS”). Dr. Cantu opined that the Static-99R

“may be the most widely used tool for individuals who are charged with sexual

offending to look at sexual offending recidivism.” Dr. Cantu also reviewed the police

narratives and Garza’s recorded interview with Detective Cantu. Based on her

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interpretation of the data available to her, Dr. Cantu diagnosed Garza with depressive

disorder and alcohol use disorder.

In evaluating Garza’s risk of reoffending, Dr. Cantu noted that she gave him

a score of “zero” for eight of the ten variables scored. For Garza’s age at the time of

the offense, Dr. Cantu assigned him a score of negative one on a scale of plus one to

negative three because, according to Dr. Cantu, people who are “a little bit older”

pose statistically less of a risk than younger offenders. For the variable relating to

prior cohabitation with a partner, Dr. Cantu assigned Garza a score of plus one

because he had not lived in a long-term relationship with a romantic partner. Dr.

Cantu explained that people who have “stable, long-term relationships generally

pose less of a risk to sexually reoffend than people who don’t have that history.” For

that reason, Dr. Cantu considered Garza’s risk to be elevated.

As for the variables that Dr. Cantu scored as a zero, she noted that Garza had

no recorded history of convictions for sexual or non-sexual violence or for non-

contact sex offenses, such as exhibitionism, and that the offense in question was not

followed by another violent assault. Overall, Dr. Cantu considered Garza to have a

score of zero, which fell in the below average risk category for sexual reoffending

according to the Static-99R. Dr. Cantu testified, however, that the best practice is to

use the Static-99R in conjunction with another tool that measures dynamic factors,

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so she also used the SOTIPS evaluation. According to SOTIPS, Garza scored an

eleven, which score fell on the low end of the moderate range of scores from eleven

to twenty. Dr. Cantu explained that a score in the moderate range indicates that the

subject has risk factors that will need to be addressed in therapy to lower the risk.

Those factors include Garza’s sexual offense responsibility and his sexual attitudes

and risk management.

More specifically, Dr. Cantu stated that regarding accepting responsibility,

Garza partially blamed his alcohol consumption for his conduct. Dr. Cantu further

testified that Garza described Kylie “in a way that could be congruent with victim

blaming[,]” thus indicating providing insight into his sexual attitudes. In addition,

Dr. Cantu noted that Garza did not “have a full awareness of understanding how to

manage his risk in the community moving forward.” In her opinion, that awareness

typically “only comes with being a participant in a group program that teaches

specific skills that are designed to monitor risk and reduce risk.”

When asked about other risk evaluation criteria, Dr. Cantu responded that

Garza scored a zero for criminal and rule breaking behavior and attitudes. She based

this score on Garza’s lack of new charges during the six-month time frame preceding

her evaluation and on his lack of attitudes or behavior consistent with the belief that

one must harm others in order to succeed. Proceeding to Garza’s willingness to make

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changes, Dr. Cantu rated Garza a one. Garza told Dr. Cantu that he was willing to

take classes to understand his risk, but did not initially believe that he needed more

than “a couple of classes[;]” he later told her, however, that he was willing to do

“quite a bit more therapy[]” to address this “very big problem.” On a scale of zero

to three, Dr. Cantu rated Garza a one for this variable. Dr. Cantu also assigned Garza

a one for his cooperation with initial evaluation because although he cooperated with

her assessment, he was “defensive and wasn’t always forthcoming.”

Dr. Cantu also discussed the sixteen treatment, intervention, and progress skill

items to be assessed in light of Garza’s need for them. These items are scored on a

scale from zero to three, and Dr. Cantu scored Garza as needing either some

intervention or moderate improvement on many of these items; she did not rate

Garza as having a high or considerable need for improvement as to any items.

Dr. Cantu rated Garza’s overall risk by combining the results of the Static-

99R and SOTIPS evaluations. She accordingly placed Garza “in a lower risk

category relative to other individuals [convicted] of sex crimes.” She did, however,

advise that Garza’s MMPI scores should be interpreted cautiously, since they could

underrepresent his traits.

Based on the evidence available to her, Dr. Cantu “strongly encourage[d]”

Garza to obtain treatment “specific to his sexual offending behavior” to ensure that

15
he understood the gravity of his conduct, its impact on Kylie and others, and his risk

for reoffending. Most of these specific treatment programs “strongly encourage men

and women who have a conviction, to move closer to full responsibility for the

offense.” The programs “focus a lot on thinking[]” by asking the offender what he

was thinking at the time of the offense and what “thoughts and feelings might have

contributed to that pattern of behavior?” There are, however, no guarantees that a

treatment program will succeed in preventing future offenses.

When expressly asked about Garza’s likelihood of success if he were

sentenced to probation, she referenced “several protective factors” that would

“bolster the chances [Garza] can make the right choices in the community.” These

“protective factors” include Garza’s “relatively stable job history[;]” his stable home

outside a child safety zone; his “adequate intelligence and job skills[,]” and his

social and family support.

During cross-examination, Dr. Cantu agreed that before committing the

offense charged, Garza would have been considered low risk. She further confirmed

that repeat offenders may have been considered low risk after committing their first

offense, but that other variables also would be considered in making the risk

assessment.

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Garza’s Character Witnesses’ Testimony

Antonio Santos, Dominic Rodriguez, “Yolanda,” Asalea Garza, and Robert

Rodriguez testified to their experiences with Garza. 3, 4 As a whole, they testified that

they had known him for several years, believed him to be a kind and generous

person, and were surprised to hear that he had committed the offense in question.

G. Documentary Evidence

The record contains the following exhibits:

• Pre-Sentence Investigation Report

• Admonitions to the Defendant for Plea to the Court

• Indictment

• Deputy’s Report for Incident 20A266526

• Biology Laboratory Report – September 28, 2020

• Garza’s Driver Record Information

• Photographs of Scene

• Dr. Cantu’s Curriculum Vitae

• Dr. Cantu’s Psychosexual Evaluation of Garza

3As with Kylie, we refer to “Yolanda” by a pseudonym to protect her privacy

as a survivor of sexual assault. See Tex. Const. art. I, § 30(a)(1) (granting crime
victims “the right to be treated with fairness and with respect for the victim’s dignity
and privacy throughout the criminal judicial process”).
4The record does not indicate that Asalea Garza is related to Appellant.

17
All exhibits were admitted without objection and support the testimony.

II. Standard of Review 5

Although Garza does not expressly invoke either the due process clause of the

Fourteenth Amendment to the United States Constitution or the due course of law

clause of the Texas Constitution, he argues that he was denied “a fair judicial

process[,]” thus implicating these rights. See U.S. CONST. amend. XIV; Tex. Const.

art. I, § 19; see also Ex parte Lewis, 688 S.W.3d 351, 351 (Tex. Crim. App. 2024)

(quoting In re Murchison, 349 U.S. 133, 136 (1955) (‘“A fair trial in a fair tribunal

is a basic requirement of due process.”’)). We therefore review Garza’s appeal under

the standard applicable to complaints of a due process or a due course of law

violation.

We review a complaint of a due process or due course of law violation under

the same standard: a de novo review. See Cabrera v. State, 513 S.W.3d 35, 38 (Tex.

App.—Houston [14th Dist.] 2016, pet. ref’d) (“In applying our state constitutional

5It is unclear from Garza’s brief whether he is asserting that he was denied

due process of law, that he did not plead guilty voluntarily, or a different error by
the trial court. Since Garza references “fundamental unfairness,” we interpret his
appeal as a due process complaint. See U.S. CONST. amend. XIV. It is unclear from
his brief if he also claims that without this articulated consideration, the plea cannot
be voluntary. It is Appellant’s duty to present a “succinct, clear, and accurate
statement of the arguments” he is making. See Tex. R. App. P. 38.1(h). Absent this,
to the extent he attempts to raise a voluntariness complaint, we do not address it. See
id.
18
guarantee of due course of law, we follow contemporary federal due process

interpretations.”) (citing U.S. Gov’t v. Marks, 949 S.W.2d 320, 326 (Tex. 1997)

(other citation omitted)); see also Nicholson v. State, 682 S.W.3d 238, 241 (Tex.

Crim. App. 2024) (“We review questions of law de novo.”).

If we construed Garza’s appeal as an attack on the sentence, itself, rather than

an attack on the procedure for imposing it, we would review his sentence, if at all,

under a “gross disproportionality” standard. See Jarvis v. State, 315 S.W.3d 158,

162 (Tex. App.—Beaumont 2010, no pet.) (citing Ex parte Chavez, 213 S.W.3d 320,

323–24 (Tex. Crim. App. 2006) (“Subject only to a very limited, ‘exceedingly rare,’

and somewhat amorphous Eighth Amendment gross-disproportionality review, a

punishment that falls within the legislatively prescribed range, and that is based upon

the sentencer’s informed normative judgment, is unassailable on appeal.”) (other

citation omitted)).

III. Applicable Law

“[P]lea bargaining is the process by which the defendant in a criminal case

relinquishes his right to go to trial in exchange for a reduction in charge and/or

sentence.” Perkins v. Ct. of Appeals for Third Sup. Jud. Dist., 738 S.W.2d 276, 282

(Tex. Crim. App. 1987) (citations omitted). A criminal defendant does not have a

constitutional or statutory right to a plea bargain. See id. In an open plea, conversely,

19
a “defendant pleads guilty without an agreement about the precise punishment he

will receive[.]” Harper v. State, 567 S.W.3d 450, 454 (Tex. App.—Fort Worth 2019,

no pet.).

To satisfy constitutional due process requirements, a guilty plea must be made

voluntarily, with sufficient awareness of the consequences of the plea. See U.S.

CONST. amend. XIV; Ex parte Palmberg, 491 S.W.3d 804, 807 (Tex. Crim. App.

2016); see also Ex parte Arjona, 402 S.W.3d 312, 314 (Tex. App.—Beaumont 2013,

no pet.) (“Due process requires that a guilty plea be considered valid only if the plea

represents a voluntary and knowing choice among the alternative courses of action

available to the defendant.”). “But a defendant need not have a comprehensive

awareness of the specific impact that relinquishing his constitutional rights may

have; sufficient awareness does not require complete knowledge of the prosecution’s

case.” Palmberg, 491 S.W.3d at 807.

To assure the voluntariness of a defendant’s plea and his awareness of its

consequences, the Code of Criminal Procedure dictates the procedures to follow in

accepting a guilty plea. See Tex. Code Crim. Proc. Ann. art. 26.13; see also

VanNortrick v. State, 227 S.W.3d 706, 708 (Tex. Crim. App. 2007) (explaining that

the purpose of the Article 26.13 admonitions ensures that the defendant’s guilty plea

comports with due process, but those admonitions themselves are not

20
constitutionally required). These procedures include admonishing the defendant,

either orally or in writing, of the range of punishment, the requirement to register as

a sex offender, and the requirement that the trial court assure itself “that the

defendant is mentally competent and the plea is free and voluntary.” See Tex. Code

Crim. Proc. Ann. art. 26.13(a), (b).

Neither the voluntary and knowing requirement of due process nor the

statutory sentencing procedure requires the trial court to set forth the basis of its

sentencing decision. See Palmberg, 491 S.W.3d at 807 (referencing a voluntary and

intelligent choice, but not the basis of the trial court’s sentencing decision); see also

Tex. Code Crim. Proc. Ann. art. 26.13(a), (b) (not including the trial court’s

reasoning for its sentencing decision). The Federal Sentencing Guidelines likewise

impose no such duty on Texas courts, as their application is limited to the federal

court system. See Harper v. State, 930 S.W.2d 625, 632 (Tex. App.—Houston [1st

Dist.] 1996, no pet.) (declining a request to instruct the jury regarding these

guidelines).

Absent certain exceptions, the rules of error preservation apply to complaints

that a defendant was denied a fair trial. See Marin v. State, 851 S.W.2d 275, 278–79

(Tex. Crim. App. 1993) overruled on other grounds by Cain v. State, 947 S.W.2d

262 (Tex. Crim. App. 1997) (discussing preservation of error versus fundamental

21
rights); see also Hogue v. State, 629 S.W.3d 731, 734 (Tex. App.—Beaumont 2021,

no pet.) (referencing the alleged violation of the defendant’s right to an impartial

jury). These exceptions encompass the right to counsel and to a jury trial, which

must be expressly waived to be relinquished. See Marin, 851 S.W.3d at 278–79.

IV. Analysis

On appeal, Garza urges us to recognize a constitutional right to have the trial

court grant him consideration for his guilty plea and articulate the details of that

consideration on the record as part of his right “to a fair judicial process.” Garza

bases this argument on public policy and on the Federal Sentencing Guidelines, yet

he has cited no controlling authority applying these considerations to this case. See

Tex. R. App. P. 38.1(i) (requiring briefs to contain “appropriate citations to

authorities and to the record[]”). To the contrary, Garza’s public policy arguments

about noting that plea bargains prevent the “already backlogged courts” from

“implod[ing]” “should be addressed to the legislature” rather than the court system.

See Zwack v. State, 757 S.W.2d 66, 69 (Tex. App.—Houston [14th Dist.] 1988, pet.

ref’d); see also Longmire v. State, 171 S.W. 1165, 1174 (Tex. Crim. App. 1914)

(“The wisdom of the policy adopted by the state, as expressed in its laws, and the

desirability of another and different policy are matters addressed to the legislative

branch of the government[.]”); Mitchell v. State, 821 S.W.2d 420, 423 (Tex. App.—

22
Austin 1991, pet. ref’d) (explaining the context of interpreting a DWI statute that

“[t]he State’s policy arguments must be addressed to the legislature”). As for Garza’s

argument that his cooperation should reduce his sentence, as provided in the federal

court system, the Federal Sentencing Guidelines do not apply in this state criminal

case. See Harper, 930 S.W.3d at 632. Regardless, a sentence within the legislatively

prescribed range generally will be affirmed on appeal. See Jackson v. State, 680

S.W.2d 809, 814 (Tex. Crim. App. 1984) (noting “that as long as a sentence is within

the proper range of punishment it will not be disturbed on appeal[]”); Diamond v.

State, 419 S.W.3d 435, 440 (Tex. App.—Beaumont 2012, no pet.) (declining to hold

that a ninety-nine-year sentence for a first-degree felony was either disproportionate

to the offense or was unconstitutionally cruel and unusual). The trial court sentenced

Garza to ten years, half the maximum sentence allowed by statute. See Tex. Penal

Code Ann. § 12.33(a) (permitting a twenty-year sentence upon conviction of a

second-degree felony). Based on Garza’s ten-year sentence, it is possible the trial

court considered Garza’s cooperation as a mitigating factor in his sentence. The

record from the sentencing hearing also shows that the trial court noted Garza’s

victim-blaming and using alcohol as an excuse, which it could have considered as

aggravating factors in assessing Garza’s punishment.

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In addition, Garza’s appeal references the plea bargain process and its

importance to the judicial system. While we agree that plea bargaining contributes

to judicial efficiency, we note that Garza’s guilty plea did not result from plea

bargaining; instead, Garza entered an open plea, with no sentencing agreement from

the State. Compare Perkins, 738 S.W.2d at 282 (defining a plea bargain), with

Harper, 567 S.W.3d at 454 (explaining an open plea and the difference between a

charge bargain and a sentence bargain); see also Ex parte Broadway, 301 S.W.3d

694, 696 (Tex. Crim. App. 2009) (contrasting a plea bargain with an open plea).

Assuming without deciding that Garza had the right to such consideration and

explanation from the trial court, he failed to preserve error on this point. See id.

33.1(a); see also Diamond, 419 S.W.3d at 440 (dictating the requirements to

preserve error to an alleged disproportionate or cruel and unusual sentence). To

preserve error, Garza needed to timely object to his sentencing procedure and obtain

a ruling on his objection. See Diamond, 419 S.W.3d at 440. He did not do so. Garza

therefore failed to preserve his argument for appellate review. See Kim v. State, 283

S.W.3d 473, 475 (Tex. App—Fort Worth 2009, pet. ref’d).

Here, as in Kim, the defendant entered an open plea as opposed to a bargained

plea, and the trial court sentenced him to a prison term rather than the community

supervision he sought. See id. at 474–75. Kim, like Garza, did not object. See id. On

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appeal, our sister court affirmed Kim’s sentence, holding that Kim’s failure to object

preserved nothing for review. See id. at 475.

Although Kim appealed the length of his sentence rather than the trial court’s

procedure, we are persuaded by the Kim court’s reasoning that an objection is

required to preserve error as to sentencing. See id.

In his briefs, Garza rhetorically asks what incentive he had for pleading guilty.

In response, we note that an incentive need not take the form of a reduced sentence.

Sparing Kylie and the rest of the family the emotional trauma of a trial would be an

incentive, as would sparing his family the embarrassment of a public trial. See

Whitaker v. State, 286 S.W.3d 355, 359, 361 (Tex. Crim. App. 2009) (referencing

the defendant’s willingness to plead guilty to spare his family “the ordeal of a trial.”).

We overrule Garza’s sole point of error on appeal.

V. Conclusion

Having considered and rejected Garza’s sole appellate point, we affirm the

trial court’s judgment.

AFFIRMED.

W. SCOTT GOLEMON
Chief Justice
Submitted on June 26, 2024
Opinion Delivered February 12, 2025
Do Not Publish
Before Golemon, C.J., Johnson and Wright, JJ.

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