Sonya Marie Dews v. State

In The Court of Appeals Sixth Appellate District of Texas at Texarkana ______________________________ No. 06-06-00221-CR ______________________________ SONYA DEWS, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 124th Judicial District Court Gregg County, Texas Trial Court No. 33941-B Before Morriss, C.J., Carter and Moseley, JJ. Memorandum Opinion by Chief Justice Morriss MEMORANDUM OPINION On May 26, 2006, Sonya Dews entered a guilty plea to the charge of possession of methamphetamine in an amount less than one gram. The trial court accepted Dews' plea and sentenced her to two years' confinement in a state jail facility; the trial court further probated imposition of the jail sentence and released Dews to community supervision for a period of five years. Dews then accepted the trial court's judgment, and she affirmatively waived her right to appeal the probated sentence. Five months later to the day, the trial court received evidence and heard arguments regarding the State's first amended application to revoke Dews' probated sentence. At this hearing, Dews admitted both orally and in writing that she had violated the conditions of her community supervision in six different ways: (1) she failed to report to her community supervision officer in June, July, and August 2006; (2) & (3) she failed to pay her monthly supervision fee and her assessed court costs in June, July, and August 2006; (4) & (5) she used amphetamines on or about August 27, 2006, and she used marihuana on or about September 20, 2006; and (6) she failed to perform her assessed community service work during the months of June, July, and August 2006. The trial court imposed the original sentence of two years' imprisonment. Dews now appeals. We affirm. In her first point of error, Dews contends she was denied her right to due process because the trial court failed to consider continuing her community supervision in lieu of revoking her probated sentence and assessing a two-year sentence. In Hull v. State, 29 S.W.3d 602, 604-07 (Tex. App.--Houston [1st Dist.] 2000), vacated & remanded, 67 S.W.3d 215 (Tex. Crim. App. 2002), the court of appeals reversed the lower court's judgment revoking community supervision on the basis that the trial court's policy of "zero tolerance" probation violated due process. Dews now seeks to strike a parallel between the situation in Hull and the case now on appeal. The Texas Court of Criminal Appeals later vacated and remanded the First Court of Appeals' decision in Hull. Hull, 67 S.W.3d at 217. The high criminal court's opinion noted Hull had not objected to the trial court's "zero tolerance" probation policy at the time of the original guilty plea or at the revocation hearing. Id. Thus, that tribunal concluded Hull had waived his due-process argument for appellate review. Id. In the case now before us, the record reveals Dews did not present the due-process claim she now seeks to raise on appeal--that the trial court failed to consider the full range of punishment and therefore violated Dews' right to due process--to the trial court. Rule 33.1 of the Texas Rules of Appellate Procedure requires that, "as a prerequisite to presenting a complaint for appellate review," the party must make a timely request, objection, or other complaint in the trial court, and the party must pursue that complaint to an adverse ruling. Tex. R. App. P. 33.1; Hull, 67 S.W.3d at 217. As Dews did not raise this issue before the trial court, we may not now conclude she has preserved it for our review. We, therefore, overrule Dews' first point of error. In her second (and final) point of error, Dews contends the trial court assessed a sentence that is disproportionate to her crime in violation of Solem v. Helm, 463 U.S. 277, 287-90 (1983). The record shows the trial court assessed a sentence of two years' imprisonment in a state jail facility, the maximum sentence authorized by Texas law for Dews' crime. See Tex. Health & Safety Code Ann. § 481.102(6) (Vernon Supp. 2006) (methamphetamine is penalty group 1 substance), § 481.115(b) (Vernon 2003) (possession of group 1 substance in amount less than one gram is state- jail felony); Tex. Penal Code Ann. § 12.35(a) (Vernon 2003) (maximum punishment for state-jail felony offense is two years' imprisonment). 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). Here, Dews' sentence falls within the applicable range of 180 days' to two years' imprisonment. That, however, does not end the inquiry. 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. U.S. Const. amend. VIII; see Solem, 463 U.S. at 290; Harmelin v. Michigan, 501 U.S. 957 (1991) (Scalia, J., plurality op.); Jackson v. State, 989 S.W.2d 842, 845 (Tex. App.--Texarkana 1999, no pet.). Solem had suggested, as a three-part test, that an appellate court consider: (1) the gravity of the offense compared with the harshness of the penalty; (2) the sentences imposed for similar crimes in the same jurisdiction; and (3) the sentences imposed for commission of the same crime in other jurisdictions. See Solem, 463 U.S. at 292. Harmelin at least raised questions about the viability of the Solem three-part test. In fact, it was subsequently held that proportionality survived Harmelin, but that the Solem three-part test did not. See McGruder v. Puckett, 954 F.2d 313, 316 (5th Cir. 1992); Lackey v. State, 881 S.W.2d 418, 420-21 (Tex. App.--Dallas 1994, pet. ref'd). In light of Harmelin, the test has been reformulated as an initial threshold comparison of the gravity of the offense with the severity of the sentence, and then, only if that initial comparison created an inference that the sentence was grossly disproportionate to the offense should there be a consideration of the other two Solem factors--(1) sentences for similar crimes in the same jurisdiction and (2) sentences for the same crime in other jurisdictions. McGruder, 954 F.2d at 316; Lackey, 881 S.W.2d at 420-21. Dews' sentence is the maximum authorized by the law applicable in this case, yet it is within the range determined by the Legislature to constitute an appropriate punishment for this type of crime. Nothing in this record demonstrates or raises an inference that this sentence was grossly disproportionate to this offense. Dews presented no evidence of punishments assessed for methamphetamine possession in Gregg County or elsewhere within this appellate district, nor does the record show she presented evidence to the trial court of punishments for this offense that have been assessed in other parts of Texas or in other jurisdictions outside of Texas. As such, Dews has not provided this Court with a record with which we may assess the validity of the contention now raised: that her sentence was constitutionally disproportionate to the offense for which she was convicted and for which her community supervision was revoked. Accordingly, we must overrule her final point of error. Finding no reversible error, we affirm the trial court's judgment. Josh R. Morriss, III Chief Justice Date Submitted: May 9, 2007 Date Decided: May 10, 2007 Do Not Publish mum of 1.5 seconds for Timothy to have actually observed, focused, and responded to Jennifer's jumping on the hood by braking-leaving less than one second before Timothy's vehicle reached the 75-foot marker. Johnson believed, however, it may have taken Timothy as many as 4.5 seconds to react to Jennifer's jumping on the hood. Thus, because Timothy had insufficient time before Jennifer sustained her fatal injuries to both be aware of the danger his driving posed to Jennifer and also consciously disregard that danger, he lacked the requisite criminal intent to commit the crime of manslaughter. The State did not present expert testimony to contradict Johnson's theories. Timothy cites Alford v. State, 866 S.W.2d 619, 624 n.8 (Tex. Crim. App. 1993), to support his position that, because there was expert testimony Jennifer's death was the result of an accident and because the State presented no evidence to directly undermine the expert's testimony, the State's evidence is insufficient to overcome the evidence of accident and insufficient to support a manslaughter conviction. In Alford, the defendant claimed the trial court's jury charge improperly shifted the burden of proof to him to show, by a preponderance of the evidence, he was under duress when he committed a robbery. Id. at 621. Alford argued that the charge delegated a burden of proof to both parties on the same issue by requiring the state to prove voluntariness beyond a reasonable doubt, yet requiring Alford, in proving his affirmative defense of duress, to establish that his actions were involuntary by a preponderance of the evidence. Id. The Texas Court of Criminal Appeals' decision in Alford first noted that the state need not prove voluntariness unless the evidence raises the issue of accident, but then went on to analyze what constituted voluntary conduct. Id. at 624 n.8. The Alford court held that the term "voluntarily," for the purpose of establishing criminal culpability, means "the absence of an accidental act, omission or possession." Id. at 624. More importantly to the disposition of the case now before us, however, is the Alford decision's limitation of the term "voluntariness" to the actor's own physical bodily movements. Id. In other words, when an accidental act is at issue, a defendant must claim his or her own physical bodily movements "were accidental" to raise a defense of accident. Id. Alford is not applicable to this case. First, the issue in Alford was whether the trial court erred in giving a jury instruction shifting the burden of proof on the affirmative defense of duress. The issue raised in the case now before us is sufficiency of the evidence. Second, Timothy does not claim that his own physical movements were accidental so as to justify evidence of accident under the language of Alford. Instead, he contends the expert's testimony establishes he had insufficient time to form the culpable mens rea necessary for the crime. Timothy's argument assumes the jury must believe the testimony presented by his expert witness. Juries, however, are free to believe or disbelieve all or any part of a witness' testimony. Swearingen, 101 S.W.3d at 98. The jury in this case could have reasonably disbelieved all or part of Johnson's testimony. Johnson testified Timothy may have had some time, albeit a very short time, to react. He also opined Timothy may not have had time to react. The jury's verdict suggests it resolved the apparent conflict in Johnson's opinions in favor of the State. Moreover, some of Johnson's opinions of the amount of time it would take a person in Timothy's position to react were based on the average reaction time to apply the brakes. But Timothy was charged with recklessly accelerating when Jennifer jumped on the hood. It is reasonable to assume the time required to react by accelerating could be less than that required to hit the brakes, especially if the driver's foot was already on the accelerator, as Timothy's apparently was, since his car was already moving forward. The jury could also have looked to the circumstances surrounding the incident to determine Timothy did, in fact, have time to react after Jennifer jumped on the hood of the car. Linda Easterling testified, "As Jennifer jumped on the car, the car accelerated and veered over to the left hand lane-the opposing lane. . . . [Jennifer] jumped on about here [indicating on a map], and when she jumped on [the car], he punched the gas and went over sideways." "When [Timothy] veered over, you know, he had to veer back or go over through the neighbor's yard. He had to come back to the right to be going the right direction." Throughout the remainder of her testimony, Easterling continued to repeat her observation that Timothy "punched the gas" after Jennifer jumped on the hood. We believe from this testimony a reasonable jury could conclude that Timothy was aware of the danger his driving posed for Jennifer, but that he nonetheless consciously disregarded that danger in his attempt to throw Jennifer off the hood of the car by veering left to right while suddenly accelerating. Additionally, the jury saw a videotaped statement by Timothy in which he admitted he knew Jennifer had been hurt to some degree, that he returned to the scene without stopping, and that he then "went out to eat." Easterling, Cindy McDonald, and Ronald Friesen, both also neighbors, testified concerning Timothy's failure to stop when he returned to the scene where his wife lay injured. Such conduct suggests an awareness of criminal conduct, as well as conscious indifference to its consequences. See, e.g., Valdez v. State, 623 S.W.2d 317, 321 (Tex. Crim. App. [Panel Op.] 1979) (op. on reh'g) (flight from scene of crime is circumstance from which inference of guilt may be drawn) (cited favorably by Roberson v. State, 80 S.W.3d 730, 737 (Tex. App.-Houston [1st Dist.] 2002, pet. ref'd)). The jury could also infer criminal intent from the evidence that Timothy did not go to the hospital after receiving the telephone call informing him Jennifer was in the hospital and "it didn't look good." We conclude there is evidence from which a jury could have found, beyond a reasonable doubt, Timothy had sufficient time to both realize the danger his driving, including sudden acceleration, posed to Jennifer and to consciously disregard that danger. Accordingly, the evidence is legally sufficient to support the conviction for manslaughter. We affirm the judgment. Donald R. Ross Justice Date Submitted: July 10, 2003 Date Decided: August 7, 2003 Do Not Publish 1. The trial court granted the State's motion to consolidate the manslaughter case with the failure to stop and render aid case for purposes of the jury trial. Both cases, however, were appealed separately. The parties have chosen to brief both cases together; we, however, will address each case by way of separate opinion. See Paslay v. State, No. 06-02-00112-CR (Tex. App.-Texarkana, Aug. 7, 2003, no pet. h.) (not designated for publication).