Killian v. State
| Decision Date | 21 December 2016 |
| Docket Number | No. 08-15-00062-CR,08-15-00062-CR |
| Parties | JASON LEE KILLIAN, Appellant, v. THE STATE OF TEXAS, Appellee. |
| Court | Texas Court of Appeals |
Appeal from 355th District Court of Hood County, Texas
(TC # CR12318)
This is an appeal from an adjudication of guilt, after the trial court revoked Appellant's community supervision. By all accounts, the Appellant has mental health issues, compounded by substance abuse. At the revocation hearing, the trial judge was essentially asked whether a drug treatment program somehow failed Appellant, or whether Appellant failed the program by suddenly refusing to participate in it. The options before the trial court were limited, and the choices difficult. Because we find the trial court did not err in revoking Appellant's community supervision, nor in sentencing Appellant to prison as it did, we affirm the conviction below as modified.
FACTUAL SUMMARY1
On March 26, 2013, Appellant pled guilty to an assault on a public servant. As a thirddegree felony, the charge carried a possible prison term of not more than ten, nor less than two years, and a fine not to exceed $10,000.00. The trial court deferred an adjudication of guilt, and placed Appellant on community supervision for five years. He was also assessed a $1,000 fine along with court costs. A special condition of that supervision required Appellant to complete an assessment with the local mental health authority and to comply with any treatment or recommendation it deemed necessary.
On July 18, 2013, the trial court modified the conditions of community supervision to add three additional requirements. First, Appellant was required to undergo weekly urinalysis. Second, Appellant was sentenced to serve four days in the county jail. Finally, Appellant was required to complete a designated substance abuse program. These modifications came following an alleged probation violation for using methamphetamines.
Less than a month later, the State moved to proceed with an adjudication of guilt in part because Appellant tested positive for methamphetamine on several other occasions. On September 17, 2013, the trial court entered an order continuing the probation, but added an additional condition relevant to the issues before us. Appellant was required to remain in a substance abuse program run by the Texas Department of Criminal Justice, administered at a Substance Abuse Felony Punishment Facility ("SAFP facility"), and to comply with all the rules of the program until discharged by the trial court. After his release from the SAFP facility, he was required to participate in a "drug or alcohol abuse continuum of care treatment plan" developed by the Texas Commission on Alcohol and Drug Abuse, and to abide by the rules of that plan until discharged by the staff. That plan included a ninety day stay in a half-way house, followed by a year-long "after care" program. The entire SAFP facility program, including the aftercare, is the most intensive substance abuse program available to the State.
Appellant was in the SAFP facility from November 19, 2013 to August 13, 2014, which is described in the record as residential incarceration. He successfully completed that portion of the program. On August 13, 2014, Appellant was released from the SAFP facility to Abode Treatment, Inc. which was to provide the first of two parts of the continuum of care treatment plan. Adobe is a halfway house designed to transition persons back into the community. Appellant was to stay at Abode for ninety days, at which time he would be released to the year-long aftercare program.
Appellant did well in Abode for the first 30 to 45 days. At that point, however, he refused to take his medications and refused to get out of bed. As his probation officer related:
When asked what was wrong with him, he said he was sick. They asked him to get up so that they could take him to the hospital, at which time he told them that he didn't have a ride. They told him that they would provide him with a ride. Then he said he didn't have the money for the hospital. And again they told him there were programs for him, he wouldn't, you know, have to necessarily pay, and he continued to lay in bed, I believe, for a total of 15 days.
This behavior led to a scheduled team meeting between Appellant and the Abode staff on September 26, 2014. Appellant was argumentative, and claimed to be too sick to attend the meeting. He finally agreed to a "behavior contract" which specifically set out what he needed to do to get back on track to successfully complete the program. A few hours later, however, he refused to sign the contract, and Abode then asked that he be removed from the program.
Based on his discharge from Abode, the State moved to proceed with an adjudication of guilt. Appellant pled true to all the allegations in the State's motion (which would have included the claim that he was discharged from Abode for non-compliance with the program). At the hearing, the State called Laura Coker, who supervised Appellant's probation, and who testified to the circumstances of his removal from the program. She explained that there was nothing left for her to try in order to make Appellant's probation work. Other testimony and evidence fromthe hearing provides additional insights into Appellant's problems.
By age four, Appellant had difficulty concentrating, and was later placed in special needs classes at school. He has been diagnosed with paranoia and schizophrenia. He would stare off into space, pace, refuse to eat, refuse to speak, or change his clothes. This behavior led his family to admit him five or six times to mental hospitals. Medications would only help for a short time. The medications also caused him to sleep all the time.
Appellant has a history of seizures. He hears voices and thinks the FBI is after him. The State had previously waived any community service requirement because Appellant could not sufficiently function to complete it. His mother and the probation officer agreed that Appellant is unemployable. He has never been in a position to live on his own, and if released, the only place he could go is with his mother. Medical records admitted at the hearing show that Appellant is on a number of medications which at times he was compliant in taking, and other times not. He also has a history of substance abuse, both with marijuana and amphetamines. He has been subject to an emergency commitment under Chapter 573 of the Mental Health Code based on findings that he posed a substantial risk of serious harm to himself or others. The finding was based on reports that he "has made threats to family members that he was going to physically hurt them as well as himself."2
At the conclusion of the hearing, the trial court adjudicated Appellant as guilty of the original offense, and orally pronounced a sentence of eight years' confinement. The trial judge did not include any fine in the oral pronouncement, but the written judgment which laterfollowed included a $1,000 fine.
ISSUES ON APPEAL
Appellant raises three points for our consideration. In his first point of error, he contends that the sentence of eight years is grossly disproportionate to the offense committed, and as such is cruel and unusual both under the state and federal constitutions. The State responds to this claim on the merits, and additionally contends that the argument is forfeited as it was not raised below. In the second point of error, Appellant argues that the evidence was insufficient to show that he violated any condition of his community supervision. The State responds that the evidence is sufficient, but by pleading true to the motion to adjudicate, an evidentiary review is foreclosed. Finally, Appellant complains that the $1,000 fine as contained in the judgment must be deleted as it was not included in the oral pronouncement of sentence. The State concedes this point and urges that we reform the judgment accordingly.
GROSS DISPROPORTIONALITY
Appellant's first point complains that the eight year sentence is grossly disproportionate to the offense. In somewhat differing verbiage, both the United States and Texas Constitutions prohibit cruel and/or unusual punishment. The federal constitution prohibits "cruel and unusual punishment" while the Texas constitution prohibits "cruel or unusual punishment." Cf. U.S. Const. amend. VIII with Tex. Const. art I, § 13. There is no significant difference, however, in the protections afforded by either constitutional protection. See Cantu v. State, 939 S.W.2d 627, 645 (Tex.Crim.App. 1997); Duran v. State, 363 S.W.3d 719, 723 (Tex.App.--Houston [1st Dist.] 2011, pet. ref'd). Accordingly, we consider Appellant's state and federal constitutional claims side by side.
"The concept of proportionality is central to the Eighth Amendment." Graham v.Florida, 560 U.S. 48, 59, 130 S.Ct. 2011, 2021, 176 L.Ed.2d 825 (2010). Embodied in the Constitution's ban on cruel and unusual punishments is the "precept of justice that punishment for crime should be graduated and proportioned to [the] offense." Weems v. United States, 217 U.S. 349, 367, 30 S.Ct. 544, 549, 54 L.Ed. 793 (1910)(sentence of 15 years to hard and "painful" labor for submitting false invoice held cruel and unusual). But when a punishment falls within a legislatively prescribed range, the judge or jury's selection of a particular sentence is generally unassailable, subject only to "exceedingly rare" circumstances when the sentence is grossly disproportional. Barrow v. State, 207 S.W.3d 377, 381 (Tex.Crim.App. 2006). And there is no doubt here that the eight year sentence fell within punishment range for this crime. TEX.PENAL CODE ANN. § 22.01(b)(1)(West Supp. 2016)(assault on public official is third degree felony); TEX.PENAL CODE ANN. § 12.34(a)(West 2011)("An individual adjudged guilty of a felony of the third degree shall be punished by imprisonment in the Texas Department of Criminal Justice for any term of...
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