Jimmie Wade Peery v. State

In The Court of Appeals Sixth Appellate District of Texas at Texarkana ______________________________ No. 06-03-00025-CR ______________________________ JIMMIE WADE PEERY, Appellant  V.  THE STATE OF TEXAS, Appellee                                               On Appeal from the 188th Judicial District Court Gregg County, Texas Trial Court No. 28088-A                                                  Before Morriss, C.J., Ross and Carter, JJ. Memorandum Opinion by Chief Justice Morriss MEMORANDUM OPINION           Jimmie Wade Peery appeals from the revocation of his community supervision. Peery pled true to the State's allegations that he had violated terms of his community supervision, and the court sentenced him at that time to five years' imprisonment. Peery contends on appeal that, based on all the circumstances and the allegations surrounding the revocation, the five-year sentence was a constitutionally disproportionate punishment.             Texas courts have traditionally held that, as long as the punishment assessed is within the range prescribed by the Legislature in a valid statute, the punishment is not excessive, cruel, or unusual. See, e.g., Jordan v. State, 495 S.W.2d 949, 952 (Tex. Crim. App. 1973). However, in Jackson v. State, 989 S.W.2d 842, 845 (Tex. App.‒Texarkana 1999, no pet.), this Court recognized that a prohibition against grossly disproportionate punishment survives under the Eighth Amendment to the United States Constitution apart from any consideration of whether the punishment assessed is within the range established by the Legislature. See also Fluellen v. State, 71 S.W.3d 870, 873 (Tex. App.‒Texarkana 2002, pet. ref'd); Latham v. State, 20 S.W.3d 63, 68-69 (Tex. App.‒Texarkana 2000, pet. ref'd).             Our proportionality analysis under both the Eighth Amendment to the United States Constitution and Article I, Section 13 of the Texas Constitution is guided by (1) the gravity of the offense and the harshness of the penalty; (2) the sentences imposed on other criminals in the same jurisdiction; and (3) the sentences imposed for commission of the same crime in other jurisdictions. See Solem v. Helm, 463 U.S. 277, 292 (1983); Simmons v. State, 944 S.W.2d 11, 15 (Tex. App.‒Tyler 1996, pet. ref'd) (evaluating appellant's Texas constitutional claim of cruel and unusual punishment under test outlined in Solem). Only if we find 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 sentences for similar crimes in the same jurisdiction and to sentences for the same crime in other jurisdictions. McGruder v. Puckett, 954 F.2d 313, 316 (5th Cir. 1992); see also Davis v. State, 905 S.W.2d 655, 664-65 (Tex. App.‒Texarkana 1995, pet. ref'd).             We have reviewed the brief record from the revocation proceeding. Peery did not present this  issue  to  the  trial  court;  therefore,   he  did  not  preserve  it  for  our  review.  See  Tex.  R. App. P. 33.1(a); Jackson, 989 S.W.2d at 844; Alberto v. State, 100 S.W.3d 528, 530 (Tex. App.‒Texarkana 2003, no pet.). Even if the contention had been preserved for review, there is no evidence in the record comparing the sentences imposed on persons in Texas with sentences imposed against defendants in other jurisdictions who committed a similar offense. See Fluellen, 71 S.W.3d at 873; Latham, 20 S.W.3d at 69; Davis, 905 S.W.2d at 664-65.                  We affirm the judgment.                                                                                      Josh R. Morriss, III                                                                                     Chief Justice Date Submitted:          October 28, 2003 Date Decided:             October 29, 2003 Do Not Publish family: Times New Roman"> Article 37.07 of the Texas Code of Criminal Procedure is not a sufficiency of the evidence rule; instead, that provision governs what kind of evidence may be introduced at law. York v. State, 258 S.W.3d 712 (Tex. App.--Waco 2008, pet. filed). Nor does Article 37.07 appear to expressly require corroboration of confessions during the punishment phase of trial. Compare Tex. Code Crim. Proc. Ann. art. 37.07 with Tex. Code Crim. Proc. Ann. art. 1.15 (Vernon 2005) (requiring State to corroborate guilty plea by bringing forth sufficient evidence to substantiate guilt). We have not been directed by the parties to any appellate cases that have addressed whether Article 37.07 of the Texas Code of Criminal Procedure requires corroboration of extrajudicial confessions admitted during the punishment phase of a trial. Nevertheless, our independent research has found two such Texas decisions. In Malpica v. State, 108 S.W.3d 374 (Tex. App.--Tyler 2003, no pet.), the appellant challenged the sufficiency of the extraneous offense evidence admitted during punishment. The court of appeals overruled his contention and expressly held that "[a]n extra-judicial confession of the extraneous offense need not be corroborated." Id. at 378. The First Court had previously reached the same conclusion in Padron v. State, 988 S.W.2d 344, 346 (Tex. App.--Houston [1st Dist.] 1999, no pet.). The Padron court noted "there is no authority regarding the need for corroboration of extrajudicial admissions to extraneous offenses." Id. In a somewhat similar case, the Texas Court of Criminal Appeals has held that the rule requiring corroboration of accomplice witness testimony about extraneous offenses does not apply during the punishment phase of a capital murder trial. In Bible v. State, the court held "the corpus delicti doctrine does not apply to extraneous offenses offered at the punishment phase of a capital murder trial." Bible v. State, 162 S.W.3d 234, 247 (Tex. Crim. App. 2005). Bible thus stands for the proposition that the State need not provide evidence to corroborate an accomplice's testimony about an extraneous offense committed by the accused when such evidence is brought forth during the punishment phase of a capital murder trial. Id. In deciding Bible, this state's highest criminal court reasoned that, at the point when a capital jury is considering the accused's punishment, the jury is "not faced with the specter of a totally innocent defendant being convicted for a crime that never occurred solely on the basis of a confession resulting from official coercion or the defendant's own delusions." Id. While Bible concerned extraneous offense evidence admitted during the punishment phase of a capital murder trial, we see no reason to judicially impose a higher burden of corroboration in noncapital cases (such as this case) than that burden which the Texas Court of Criminal Appeals expressly refused to extend to capital cases. Instead, we agree with our sister courts' conclusions in Malpica and Padron, and we hold that extrajudicial confessions of extraneous offenses need not be corroborated at the punishment phase of a jury trial; instead, the only limitation is whether the jury independently believes such confessions prove the alleged extraneous offenses beyond a reasonable doubt. In this case, McClure's custodial confession to Foreman about dealing drugs would, if believed by the jury, be sufficient to support the conclusion that (beyond a reasonable doubt) McClure had engaged in such conduct. Cf. Torres v. State, 92 S.W.3d 911, 916-17 (Tex. App.--Houston [14th Dist.] 2002, pet. ref'd) (jury free to rely on circumstantial evidence contained in extrajudicial confession that Torres committed murder; evidence insufficient for conviction). The prosecutor's initial proffer during the bench conference informed the trial court that the expected testimony would show McClure admitted to selling methamphetamine in quarter-gram amounts during twenty to twenty-five different transactions over a nine-month period. This summary of the expected testimony provided the trial court with enough information to conclude the expected evidence alone would (if believed by the jury beyond a reasonable doubt) support the conclusion that McClure had committed these other crimes. (3) Article 37.07 did not require the State to provide, nor did Article 37.07 require the trial court to first hear, additional corroborating evidence before the extrajudicial confession to these extraneous offenses could be admitted during the punishment phase of the trial. No error has been shown. II. Probative Value Versus Prejudicial Impact In his second point of error, McClure contends the probative value of the extrinsic offense was substantially outweighed by its potential for prejudice. The record shows McClure preserved this issue by first raising this objection during trial. Trial courts are afforded a wide range of discretion within which to admit or exclude evidence. Wilder v. State, 111 S.W.3d 249, 255 (Tex. App.--Texarkana 2003, pet. ref'd). As a reviewing court, we will not reverse a trial court's decision to admit or exclude evidence absent a showing that the lower court abused that discretion. If the trial court's decision falls within the zone of reasonable disagreement, that decision will not be disturbed. Green v. State, 934 S.W.2d 92, 102 (Tex. Crim. App. 1996); Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1990) (op. on reh'g). The Texas Rules of Evidence favor the admission of all relevant evidence at trial. Tex. R. Evid. 402. "Relevant evidence" is "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence." Tex. R. Evid. 401. However, even relevant evidence may be excluded if the probative value of that otherwise relevant evidence is "substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or needless presentation of cumulative evidence." Tex. R. Evid. 403. "'[U]nfair prejudice' refers to 'an undue tendency to suggest decision on an improper basis, commonly, though not necessarily, an emotional one." Erazo v. State, 144 S.W.3d 487, 501-02 (Tex. Crim. App. 2004) (quoting Rogers v. State, 991 S.W.2d 263, 266 (Tex. Crim. App. 1999)); accord Cohn v. State, 849 S.W.2d 817, 820 (Tex. Crim. App. 1993). The Texas Court of Criminal Appeals has offered the following explanation of the meaning of Article 37.07 of the Texas Code of Criminal Procedure and its relevancy parameters with respect to evidence admitted during a punishment trial: Article 37.07, § 3(a)(1) allows for admission of any evidence the trial court "deems relevant to sentencing." The Legislature has expressly provided that "relevant" punishment evidence includes, but is not limited to, both character evidence in the form of opinion testimony as well as extraneous-offense evidence. Because there are no discrete fact issues at the punishment phase of a non-capital trial, we have ruled that the definition of "relevant," as stated in Rule 401 of the Texas Rules of Evidence, does not readily apply to Article 37.07. What is "relevant" to the punishment determination is simply that which will assist the fact finder in deciding the appropriate sentence in a particular case. When the jury assesses punishment, it must be able to tailor the sentence to the particular defendant, and relevance is simply "a question of what is helpful to the jury in determining the appropriate sentence for a particular defendant in a particular case." Importantly, we have held that when a defendant applies for community supervision (as the appellant did), the trial court may reasonably deem any character trait that pertains to the defendant's suitability for community supervision to be a relevant matter for the sentencer to consider. Sims v. State, No. PD-1575-07, 2008 Tex. Crim. App. LEXIS 820, at *8-9 (Tex. Crim. App. July 2, 2008) (footnotes omitted). (4) A person's history of violating the law is undoubtedly a relevant factor for a jury to consider when assessing a sentence because it relates to the defendant's character. Fowler v. State, 126 S.W.3d 307, 310 (Tex. App.--Beaumont 2004, no pet.). Juries should also be able to consider a person's criminal history. Lujan v. State, 626 S.W.2d 854, 864 (Tex. App.--San Antonio 1981, pet. ref'd). When, as was the case here, the accused has filed an application for community supervision in which he or she claims never to have been previously convicted of a felony offense, the issue of whether or not that person has ever previously engaged in felony-level conduct is certainly relevant. Does such evidence serve to prejudice the accused? Certainly. Anything that paints the defendant in a bad light is hurtful and prejudicial to his or her case. But is that prejudice "unfair" or does that prejudice substantially outweigh the evidence's probative value? Under our law, the answer to that question is clearly "No," with respect to extraneous offense evidence that the jury believes to have been proven beyond a reasonable doubt, because such evidence has such an empirically high probative value with regard to a jury's ability to assess a sentence appropriate for both the facts of that particular case and for that particular defendant. Conclusion The trial court did not err by admitting testimony during McClure's punishment trial that McClure had confessed to committing extraneous offenses, even though such testimony was not accompanied by corroborating evidence. Article 37.07 of the Texas Code of Criminal Procedure requires no such corroboration. Additionally, the probative value of this extraneous offense evidence was not substantially outweighed by any unfair prejudice resulting from admission of this evidence. The trial court did not abuse its discretion by admitting this disputed evidence. We overrule McClure's points of error and affirm the trial court's judgment. Jack Carter Justice Date Submitted: September 12, 2008 Date Decided: October 3, 2008 Publish 1. Foreman later stated he believed McClure had lied about only being a drug dealer for nine months. 2. McClure reportedly admitted he had saved about $7,000.00 from these drug sales to buy a house. 3. The trial court in McClure's case instructed the jury that it was not to consider evidence of "any crime or other bad act" that had been admitted at trial "unless [the jury] believe[d] beyond a reasonable doubt that the Defendant in this case committed said offense or bad act." 4. McClure had filed an application for community supervision in this case.