Nealy v. State

• Court: Texas Court of Appeals
• Writing for the Court: GREGORY T. PERKES
• Decision Date: 14 March 2013
• Docket Number: NUMBER 13-11-00288-CR
• Citation: Nealy v. State, NUMBER 13-11-00288-CR (Tex. App. Mar 14, 2013)
• Parties: FRANKIE WAYNE NEALY, Appellant, v. THE STATE OF TEXAS, Appellee.

FRANKIE WAYNE NEALY, Appellant,

v.THE STATE OF TEXAS, Appellee.

NUMBER 13-11-00288-CR

COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI - EDINBURG

Filed: March 14, 2013

On appeal from the 94th District Court

of Nueces County, Texas.

MEMORANDUM OPINION

Before Justices Benavides, Vela, and Perkes¹

Memorandum Opinion by Justice Perkes

Appellant, Frankie Wayne Nealy, appeals the revocation of his deferred-adjudication probation. Appellant pleaded true to violating community-supervision conditions, but complains that the trial court: (1) failed to givehim the opportunity to present mitigating evidence during punishment; (2) should have disregarded his pleading of true to the offense of terroristic threat because it was allegedly disproven by the evidence presented; and (3) assessed an excessive and grossly disproportionate sentence. By a fourth issue, appellant claims he received ineffective assistance of counsel. We affirm.

I. BACKGROUND

Appellant was placed on deferred-adjudication community supervision after he pleaded guilty to the offenses of aggravated kidnapping, a first-degree felony, see TEX. PENAL CODE ANN. § 20.04 (West 2011), and sexual assault, a second-degree felony, see TEX. PENAL CODE ANN. § 22.011 (West 2011). The State subsequently moved to revoke appellant's community supervision, alleging he violated several community-supervision conditions by: (1) committing an offense of "terroristic threat" against the laws of the State, see TEX. PENAL CODE ANN. § 22.07 (West 2011); (2) failing to pay court costs and fees; and (3) failing to abstain from using the internet. Appellant pleaded true to the alleged violations. The trial court revoked appellant's community supervision, and sentenced him to a term of life in the Texas Department of Criminal Justice, Institutional Division, for the aggravated kidnapping offense; and to a term of twenty years confinement for the sexual assault offense, to run concurrently with the life imprisonment sentence.

II. PUNISHMENT PHASE OF REVOCATION PROCEEDING

By his first issue, appellant argues that the trial court erred by not affording him the opportunity to present mitigating evidence regarding punishment. Appellant complainsthat the trial court did not separate the evidentiary and punishment phases of the hearing, but rather adjudicated and sentenced appellant "in one breath" without notifying him that he should shift from presenting evidence concerning violations of community-supervision conditions to mitigating factors for sentencing. No objection was made at the time of the hearing. Rather, appellant filed a motion for new trial in which he describes evidence that was not presented that would allegedly mitigate the trial court's sentence.

A. Preservation

Preservation of error is a prerequisite to presenting a complaint for appellate review. TEX. R. APP. P. 33.1; Moore v. State, 371 S.W.3d 221, 225 n.4 (Tex. Crim. App. [panel op.] 2012). A complaint that the trial court erred by not providing a separate punishment hearing following revocation of deferred-adjudication probation must be preserved by making a grounded objection, which is pursued to an adverse ruling, or raising the objection in a timely motion for new trial. See Vidaurri v. State, 49 S.W.3d 880, 885-86 (Tex. Crim. App. 2001). In either case, the objection presented to the trial court must comport with the objection on appeal. See Guevara v. State, 97 S.W.3d 579, 583 (Tex. Crim. App. 2003); Moreno Denoso v. State, 156 S.W.3d 166, 174 (Tex. App.—Corpus Christi 2005, pet. ref'd).

B. Discussion

In his motion for new trial, appellant states "[t]he court was not presented evidence concerning Defendant's improvement during his period of community supervision." Appellant then lists various events and activities that allegedly show he has improved.On appeal, however, appellant clarifies that such evidence was not presented due to the fault of the trial court in failing to separate the revocation from the punishment proceeding.

We hold that appellant's objection in the motion for new trial did not appraise the trial court of the argument that he presents on appeal—that the trial court should have conducted a distinct hearing on punishment. See TEX. R. APP. P. 33.1 (requiring objection to be stated "with sufficient specificity to make the trial court aware of the complaint . . . ."). Since appellant's objection on appeal fails to comport with the objection he made to the trial court, he has not preserved error for review. Guevara, 97 S.W.3d at 583; Moreno Denoso, 156 S.W.3d at 174. We overrule appellant's first issue

III. SUFFICIENCY OF THE EVIDENCE

By his second issue, appellant contends that the evidence was insufficient to support the trial court's finding that appellant violated the conditions of his community supervision. Appellant specifically challenges the sufficiency of the evidence to support the finding that he committed a terroristic threat, despite the fact that appellant pleaded true to the allegation.² Appellant does not challenge any of the other grounds for revoking his community supervision.

In reviewing a probation revocation, a single violation of probation is sufficient to support the trial court's decision to revoke. Moore v. State, 605 S.W.2d 924, 926 (Tex. Crim. App. 1980); Herrera v. State, 951 S.W.2d 197, 199 (Tex. App.—Corpus Christi 1997, no pet.). A plea of true is sufficient to support revocation. Moses v. State, 590S.W.2d 469, 470 (Tex. Crim. App. [panel op.] 1979); Nino v. State, No. 13-97-00930-CR, 1998 WL 34202482, at *1 (Tex. App.—Corpus Christi Aug. 20, 1998, no pet.) (not designated for publication).

On appeal, appellant challenges the sufficiency of the evidence to support the violation of the condition to not commit any offenses against the laws of the State. Appellant does not challenge any of the other community-supervision conditions to which he pleaded true. A single violation is sufficient to support revocation. See Moore, 605 S.W.2d at 926; Moses, 590 S.W.2d at 470; see also TEX. R. APP. P. 47.1. We overrule appellant's second issue.

IV. PROPRIETY OF SENTENCE

Appellant argues that the life imprisonment sentence is excessive and grossly disproportionate to the offense of aggravated kidnapping. Appellant complains that the sentence constitutes cruel and unusual punishment. U. S. CONST. amend. XVIII.

Sentencing is within the sound discretion of the trial court; we therefore review the trial court's sentence under an abuse of discretion standard. See Jackson v. State, 680 S.W.2d 809, 814 (Tex. Crim. App. 1984) (en banc). As a general rule, a penalty assessed within the proper punishment range will not be disturbed on appeal. Id. at 814. Punishment that falls within the limits prescribed by a valid statute is not excessive, cruel, or unusual. Trevino v. State, 174 S.W.3d 925, 928 (Tex. App.—Corpus Christi 2005, pet. ref'd) (citing Harris v. State, 656 S.W.2d 481, 486 (Tex. Crim. App. 1983) (en banc); Jordan v. State, 495 S.W.2d 949, 952 (Tex. Crim. App. 1973); Samuel v. State, 477 S.W.2d 611, 614 (Tex. Crim. App. 1972)).

Appellant pleaded guilty to a first degree felony of aggravated kidnapping and to a second degree felony of sexual assault. The sentences imposed for these offenses fall within the range of punishment established by Legislature. See TEX. PENAL CODE ANN. §§ 12.32 (first degree felony - "shall be punished by imprisonment . . . for life or for any term of not more than 99 years or less than 5 years"); 12.33 (second degree felony - "shall be punished by imprisonment . . . for any term of not more than 20 years or less than 2 years"); see also Phillips v. State, 887 S.W.2d 267, 268-70 (Tex. App.—Beaumont 1994, writ ref'd) (defendant's sentence of ninety-nine years was not excessive; defendant pleaded guilty to a first degree felony for aggravated sexual assault, and subsequently pleaded true to violating conditions of community-supervision).

Appellant contends that although a sentence falls within the range of punishment, it may still violate the Eighth Amendment if it is grossly disproportionate to the offense committed. See U. S. CONST. amend. XVIII; Solem v. Helm, 463 U.S. 277, 291 (1983). In Solem, the United States Supreme Court established three factors for analyzing proportionality: (1) the gravity of the offense relative to the harshness of the penalty; (2) the sentences imposed for other crimes in the jurisdiction; and (3) the sentences imposed for the same crime in other jurisdictions. Id. at 292. As this court noted in Trevino, however, "the viability and mode of application of the proportionate analysis in non-death penalty cases has been questioned since the Supreme Court's decision in Harmelin v. Michigan, 501 U.S. 957, 111 S.Ct. 2680, L.Ed.2d 836 (1991)." Trevino, 174 S.W.3d at 928 (citing McGruder v. Puckett, 954 F.2d 313, 315-16 (5th Cir. 1992)); see Sullivan v. State, 975 S.W.2d 755, 757-58 (Tex. App.—Corpus Christi 1998, no pet.).

Assuming arguendo the viability of the Solem factors, life imprisonment is not a grossly disproportionate sentence given the gravity of the offenses for which appellant was convicted. The evidence showed that appellant intentionally threw the complainant to the ground and battered her; dragged her to his vehicle and kidnapped her; and sexually assaulted her and demanded that she perform oral sex. Appellant does not discuss the second and third Solem factors, and we therefore do not consider them. See Trevino, 174 S.W.3d at 928-29. We overrule appellant's third issue.

V. INEFFECTIVE ASSISTANCE OF COUNSEL

By his final issue, appellant claims he received ineffective assistance of counsel. Appellant argues that his trial counsel provided constitutionally deficient performance by failing to submit mitigating evidence or argument on the issue of punishment, and by failing to object when the prosecutor referenced personal opinions of members of the probation department.

In order for appellant to succeed on this claim, h...