Westerman v. State
| Docket Number | 02-23-00127-CR |
| Decision Date | 25 April 2024 |
| Parties | Terry Lynn Westerman, Appellant v. The State of Texas |
| Court | Texas Court of Appeals |
1
Terry Lynn Westerman, Appellant
v.
The State of Texas
No. 02-23-00127-CR
Court of Appeals of Texas, Second District, Fort Worth
April 25, 2024
Do Not Publish Tex.R.App.P. 47.2(b)
On Appeal from the 355th District Court Hood County, Texas Trial Court No. CR15470
Before Sudderth, C.J.; Kerr and Walker, JJ.
MEMORANDUM OPINION
Elizabeth Kerr, Justice.
After being caught on video selling methamphetamine to a woman who turned out to be a confidential informant, Appellant Terry Lynn Westerman pleaded guilty to delivery of controlled substance of more than four grams but less than two hundred grams and was sentenced to ninety-nine years' confinement. In his sole complaint, Westerman contends that this sentence is grossly disproportionate to the offense he committed and to similar offenses in the same jurisdiction and thus constitutes cruel and unusual punishment in violation of the Eighth Amendment. We disagree and affirm his conviction and sentence.
I. Background
In May 2021, Jere Powell and Tracy Thurman were apprehended with 92 grams of methamphetamine in their possession. After Thurman claimed responsibility for the drugs, Investigator Gary Roberts with the Hood County Sheriff's Office (HCSO) offered Powell an opportunity to become a confidential informant. Powell contacted a woman named Michelle Taylor or Michelle Burris,[1] with whom she had smoked methamphetamine several times before, and told her she would like to purchase methamphetamine. HCSO followed Powell to Michelle's residence and recorded the transaction using Powell's phone. At the residence, Powell met Westerman, who offered to sell her ten grams of methamphetamine for $200. Powell handed
Westerman $200 in cash that HCSO had provided her and left Michelle's residence with the methamphetamine. She then drove directly to meet the officers who had arranged the drug transaction with her and gave them the methamphetamine.
Westerman was arrested and charged with delivery of a controlled substance of more than four grams but less than two hundred grams and possession of a controlled substance of four grams or more but less than two hundred grams.[2] See Tex. Health & Safety Code Ann. § 481.112(d), .115(c).
In a repeat-offender notice, the State further alleged that Westerman had been previously convicted of the felony offense of delivery of a controlled substance less than one gram (enhanced). See Tex. Penal Code Ann. § 12.42(c). Westerman pleaded guilty to the delivery charge and true to the repeat-offender notice and elected to have a jury assess his punishment.[3] The jury assessed his punishment at ninety-nine years' confinement in the Institutional Division of the Texas Department of Criminal Justice. The trial court sentenced Westerman accordingly.[4]
Westerman timely filed a motion for new trial contending, among other things, that his sentence is excessive and constitutes cruel and unusual punishment in violation of the Eighth Amendment of the United States Constitution and Article I, Section 13 of the Texas Constitution. See U.S. Const. amend. VIII; Tex. Const. art. I, § 13; Tex.R.App.P. 21.4(a); see also Kim v. State, 283 S.W.3d 473, 475 (Tex. App.- Fort Worth 2009, pet. ref'd) (discussing preservation requirements for Eighth Amendment challenge). The motion was denied by operation of law without a hearing. See Tex. R. App. P. 21.8(a), (c).
II. Discussion
Westerman raises a single point on appeal involving alleged excessiveness and cruel and unusual punishment.[5]
A. Applicable Law
We first note that we are not sure Westerman has preserved his appellate complaint for our review. To preserve a complaint for appellate review, an appellant must present the trial court with a timely request, objection, or motion stating the
specific grounds for his desired ruling. Tex.R.App.P. 33.1(a)(1)(A); Rhoades v. State, 934 S.W.2d 113, 119 (Tex. Crim. App. 1996). A defendant must raise a disproportionate-sentencing objection in a timely manner. Sample v. State, 405 S.W.3d 295, 303-04 (Tex. App.--Fort Worth 2013, pet. ref'd); Kim, 283 S.W.3d at 475.
When sentenced, Westerman voiced no objection. Westerman later filed a motion for new trial in which he complained that his sentence violated the United States and Texas Constitutions. But there is no showing that Westerman presented the motion to the judge or otherwise had a hearing. See Tex. R. App. P. 21.6 ("The defendant must present the motion for new trial to the trial court within 10 days of filing it, unless the trial court in its discretion permits it to be presented and heard within 75 days from the date when the court imposes or suspends sentence in open court."). The trial court's docket sheet does not reflect that Westerman presented his motion for new trial to the trial court. Accordingly, it is not clear whether Westerman preserved his Eighth Amendment claim. See Emanuel v. State, No. 02-16-00376-CR, 2018 WL 2142769, at *5 (Tex. App.-Fort Worth May 10, 2018, pet. ref'd) (mem. op., not designated for publication). Regardless, Westerman's argument is without merit.
The Eighth Amendment-which applies to the states through the Fourteenth Amendment-prohibits "cruel and unusual punishments." U.S. Const. amends. VIII, XIV; Graham v. Florida, 560 U.S. 48, 58-60, 130 S.Ct. 2011, 2021-22 (2010); State v. Simpson, 488 S.W.3d 318, 322 (Tex. Crim. App. 2016). Generally, if a sentence is "within the statutory limits, including punishment enhanced pursuant to a habitual-
offender statute, [it] is not excessive, cruel, or unusual." Simpson, 488 S.W3d at 323 But a narrow exception to this general rule exists: the Eighth Amendment prohibits noncapital punishment within the statutory limits if the sentence is grossly disproportionate to the offense[6] Graham, 560 U.S. at 59-60, 130 S.Ct. at 2021-22; Harmelin v Michigan, 501 U.S. 957, 997-1001, 111 S.Ct. 2680, 2702-05 (1991) (Kennedy, J, concurring);[7] Simpson, 488 S.W.3d at 322 Although the "precise contours [of the gross-disproportionality exception] are unclear," Harmelin, 501 U.S. at 998-1001, 111 S.Ct. at 2703-05 (Kennedy, J, concurring), one thing is certain: it applies "only in the exceedingly rare or extreme case."[8] Simpson, 488 S.W.3d at 322- 23.
To determine whether a noncapital sentence qualifies for this uncommon and
"somewhat amorphous" exception, we begin with a threshold analysis comparing the offense's gravity to the sentence's severity. Graham, 560 U.S. at 60, 130 S.Ct. at 2022; Simpson, 488 S.W.3d at 323; Ex parte Chavez, 213 S.W.3d 320, 323-24, 324 n.20 (Tex. Crim. App. 2006). Assessing the offense's gravity requires us to consider the defendant's culpability, the defendant's prior adjudicated and unadjudicated crimes, and the harm caused or threatened to the victim and to society. See Simpson, 488 S.W.3d at 323. We weigh these factors against the defendant's sentence, looking to precedent for guidance on the constitutional limits of proportional severity. See Hutto v. Davis, 454 U.S. 370, 374-75, 102 S.Ct. 703, 706 (1982) (per curiam) (chastising lower courts for extending gross-disproportionality exception beyond the limits of precedent); McGruder, 954 F.2d at 317 (holding sentence was not grossly disproportionate in light of both Supreme Court and Fifth Circuit precedent).
In the rare case in which this threshold first-step analysis indicates gross disproportionality, we proceed to steps two and three by comparing the defendant's sentence with those received by similar offenders in this jurisdiction and with sentences imposed for the same crime in other jurisdictions.[9] Simpson, 488 S.W.3d at 323;
see also Solem, 463 U.S. at 296-300, 103 S.Ct. at 3012-15 (applying steps two and three). But the appeal before us is not such a case; Westerman's sentence is within constitutional bounds considering the gravity of his offense, so we need address only step one.
B. Gravity of Westerman's Offenses
The gravity of Westerman's offenses was and is significant. He had high culpability, he had an extensive criminal history, and he posed a grave danger to society.
1. Culpability
"In analyzing a defendant's culpability, we consider factors such as the defendant's age at the time of the offense, his motive and intent to commit the crime, his role as the primary actor or as a party to the offense, and his acceptance of responsibility." Bolar v. State, 625 S.W.3d 659, 666 (Tex. App.-Fort Worth 2021, no pet.). Here, Westerman was fifty-four years old when he committed the offense, an offense that was the result of his intentional or knowing conduct. See Tex. Health & Safety Code Ann. § 481.112(a). The video recording of Westerman selling Powell the drugs was entered into evidence and played for the jury, so there was no doubt about Westerman's role as the primary actor.
Westerman points out that he pleaded guilty and told the trial court, "I accept
full responsibility." But the record indicates that he initially pleaded not guilty, changing his mind on the second day of trial after his jury had been impaneled and sworn. And the jury heard testimony that, when investigators from HCSO came to apprehend Westerman, they observed him "in the river in a kayak or a canoe with a wig on trying to disguise his appearance. They requested him to come to the shore[,and h]e refused. [Instead, h]e turned the canoe or kayak that he was in around and fled down the river." Investigator Roberts testified that deputies from neighboring Somervell County took Westerman into custody on the other side of the river. These actions undermine Westerman's appellate contention that he willingly took responsibility for his role in delivering 10.01 grams of methamphetamine in this case. See Bolar, 625 S.W.3d at 667 (reasoning that, although defendant pleaded guilty, his "repeated efforts to evade arrest" undermined his claim that he voluntarily took responsibility for...
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