In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
______________________________
No. 06-02-00133-CR ______________________________
RENE ANTONIO RODRIGUEZ, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 232nd Judicial District Court Harris County, Texas Trial Court No. 865869
Before Morriss, C.J., Grant and Ross, JJ. Opinion by Chief Justice Morriss
O P I N I O N
Rene Antonio Rodriguez appeals his conviction for aggravated sexual assault of a child and sentence of eleven years' confinement. The trial court pronounced sentence on April 29, 2002, making Rodriguez' notice of appeal due by May 29, 2002. (1) See Tex. R. App. P. 26.2(a)(1).
Rodriguez filed his notice of appeal on June 3, 2002. Therefore, his notice of appeal is untimely, and this Court is without jurisdiction over the appeal. Olivo v. State, 918 S.W.2d 519, 522 (Tex. Crim. App. 1996). (2)
The appeal is dismissed for want of jurisdiction.
Josh R. Morriss, III
Chief Justice
Date Submitted: August 14, 2002
Date Decided: August 15, 2002
Do Not Publish
1. If Rodriguez had filed a timely motion for new trial, the notice of appeal deadline would have been July 29, 2002. See Tex. R. App. P. 26.2(a)(2); see also Tex. R. App. P. 4.1(a) (if the last day of a period is on a Saturday, Sunday, or legal holiday, the period is extended to the end of the next day that is not a Saturday, Sunday, or legal holiday). He did not, however, file a motion for new trial.
2. In Olivo, the Texas Court of Criminal Appeals noted the denial of a meaningful appeal because of ineffective assistance of counsel is a proper ground for habeas corpus relief. Olivo v. State, 918 S.W.2d 519, 525 n.8 (Tex. Crim. App. 1996); see also Tex. Code Crim. Proc. Ann. art. 11.07 (Vernon Supp. 2002).
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In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
______________________________
No. 06-05-00258-CR
______________________________
JESSE WADE HOLT, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 204th Judicial District Court
Dallas County, Texas
Trial Court No. F-0500830-UQ
Before Morriss, C.J., Ross and Carter, JJ.
Memorandum Opinion by Justice Carter
MEMORANDUM OPINION
Jesse Wade Holt appeals his conviction by a jury for aggravated assault and evading arrest. While detained for traffic violations, Holt backed his truck into a car being driven by Officer Donald Dockins. In the process of backing up, Holt swerved his truck toward Dockins, who was standing in front of the car on the driver's side. Holt then fled the scene and was eventually apprehended after colliding with another police car. The trial court assessed punishment at twenty-five years for the evading arrest conviction and forty-five years for the aggravated assault conviction. On appeal, Holt raises four issues. Holt contends 1) the evidence is legally insufficient, 2) the evidence is factually insufficient, 3) the sentences are grossly disproportionate under the Eighth Amendment, and 4) the sentences are grossly disproportionate under Article I, Section 13 of the Texas Constitution. We affirm the judgment of the trial court.
The Evidence is Sufficient
In his first and second points of error, Holt argues the evidence was legally and factually insufficient to support his conviction for aggravated assault. According to Holt, the State could not have met its burden of proof because the evidence showed Holt turned his wheels to avoid striking Officer Dockins. Holt contends the photographs of the damage to Holt's truck and Dockins' car, as well as the testimony concerning his maneuver around Officer Frank Pontillo's car, establish that Holt was attempting to avoid striking either car. In addition, Holt attacks the evidence as being insufficient to prove Dockins was in fear of imminent bodily injury.
In our review of the legal sufficiency of the evidence, we employ the standards set forth in Jackson v. Virginia, 443 U.S. 307, 319 (1979). This calls on the court to view the relevant evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000). In our review, we must evaluate all of the evidence in the record, both direct and circumstantial, whether admissible or inadmissible. Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999).
In a factual sufficiency review, the appellate court views all the evidence in a neutral light and determines whether the evidence supporting the verdict is too weak to support the finding of guilt beyond a reasonable doubt or if evidence contrary to the verdict is strong enough that the beyond-a-reasonable-doubt standard could not have been met. Threadgill v. State, 146 S.W.3d 654, 664 (Tex. Crim. App. 2004); see Zuniga v. State, 144 S.W.3d 477, 486 (Tex. Crim. App. 2004).
To prove the offense of aggravated assault as alleged in the indictment, the State was required to prove Holt committed an assault and used or exhibited a deadly weapon during the commission of the assault. See Tex. Pen. Code Ann. § 22.02 (Vernon Supp. 2005). An assault, as defined in Section 22.01 of the Texas Penal Code, is committed when the actor threatens another with imminent bodily injury. Tex. Pen. Code Ann. § 22.01(a)(2) (Vernon Supp. 2005).
When Dockins observed Holt squeal the tires on the truck he was driving, leaving behind white smoke, and "peel out" of a parking lot onto a major street, Officer Dockins followed Holt. Dockins was on his lunch break and driving an unmarked car. Although Holt sped through the neighborhood, he did stop at each stop sign and then "peeled out." Dockins radioed the police dispatcher to request backup, which he always did when in an unmarked car. Dockins followed Holt to the Foxwood Apartments. Holt turned left into the apartment complex and drove over several speed bumps at about twenty miles per hour. Holt then proceeded to drive around the complex at speeds up to forty miles per hour. In the meantime, Officer Pontillo responded to Dockins' request for assistance. As Holt approached Pontillo's marked patrol car, "[h]e immediately turned left through the parking lot" and "started traveling north" at a high rate of speed. Pontillo followed on a parallel exterior street. When Holt passed a second entry point to the apartment complex, he avoided Pontillo by continuing around the complex at a high rate of speed.
Eventually, Holt stopped at the end of the apartment complex where there was no entry or exit point. Officer Pontillo stopped, straddling the center lane on the exterior street. Holt had driven partially over a grassy berm and sidewalk separating the apartment complex and the exterior street where Pontillo had stopped. Pontillo was parked perpendicular to Holt's truck facing the truck. Officer Dockins parked his unmarked car four or five feet behind Holt's truck and exited his vehicle with his weapon at his side. Dockins and Pontillo testified Dockins yelled, "Police. Turn off the vehicle." At this point, Dockins approached Holt's vehicle. Dockins testified he was unsure whether Holt could see his badge, but did not think Holt could see his weapon. Dockins testified he and Holt made eye contact in Holt's rearview mirror.
At this point, Holt put his truck in reverse, squealed his tires, and backed into Officer Dockins' unmarked car. Dockins testified Holt turned while backing up toward where Dockins was standing in front of the unmarked car on the driver's side. Dockins testified that, if Holt had backed straight, he would have only needed one step to get out of the way. Because Holt turned as he backed, Dockins had to jump out of the way. Dockins testified that he would have been "crushed" if he had not jumped out of the way and that Holt's actions placed him in fear of imminent bodily injury. Officer Pontillo fired several shots at Holt as he backed toward Dockins. Holt's truck ended up on the top of Dockins' car, with the rear wheels resting on the bumper.
Holt then leaned down in the truck, drove over the median, and sped off, turning right just enough to miss Officer Pontillo's car. Pontillo pursued Holt. Holt led Pontillo on a high-speed chase during which Holt ran two red lights, drove over another median, and was eventually detained after colliding with Pontillo's patrol car, penning Pontillo in the car. During the high-speed chase, the officers were informed by the dispatcher that the truck being driven by Holt was stolen.
Viewed in a light most favorable to the State, a rational juror could have found beyond a reasonable doubt all the essential elements of aggravated assault. A rational juror could have found Holt intentionally or knowingly placed Officer Dockins in fear of imminent bodily injury. A rational juror could have also found that Holt used the truck he was driving in such a manner as to constitute a deadly weapon. The evidence is legally sufficient.
Viewing the evidence in a neutral light, the evidence is factually sufficient. We are unable to conclude that the evidence supporting the verdict is too weak for the State to have met its burden of proof. As discussed above, the jury was presented with evidence that Holt turned his truck toward Officer Dockins, rather than away from Dockins, after making eye contact with the officer. Further, the evidence contrary to the verdict is not strong enough that the State could not have proven Holt guilty beyond a reasonable doubt. Photographs show that the damage to the truck being driven by Holt is on the passenger side bumper, and the damage to Dockins' car is on the passenger side hood. Even if the photographs constitute evidence Holt was attempting to avoid striking Dockins, the photographs of the damage are not strong enough evidence Holt was trying to avoid Dockins that the State could not have met its burden of proof. The jury, as the trier of fact, is the sole judge of the credibility of the witnesses and of the strength of the evidence. Fuentes v. State, 991 S.W.2d 267, 271 (Tex. Crim. App. 1999). The evidence is factually sufficient. We overrule Holt's first and second points of error.
The Sentences are not Grossly Disproportionate
In his third and fourth points of error, Holt argues his sentences are grossly disproportionate under the Eighth Amendment and Article I, Section 13 of the Texas Constitution. Holt argues that his age, history of drug abuse, and medical disorders indicate the sentences of twenty-five years and forty-five years are disproportionate penalties. Holt was thirty years old when he committed these offenses. In addition, Holt has been diagnosed with long-standing substance abuse, Bi-Polar II Disorder, and a borderline personality disorder. Dr. Ricki Marshall, a psychologist, testified he believes Holt has been self-medicating depression caused by the bi-polar disorder through drug abuse. Dr. Marshall testified that Holt's bi-polar disorder causes him to engage in impulsive behavior that can be "very self-defeating."
Holt urges this Court to hold the Texas Constitution provides greater protection against disproportionate sentences. The Texas Constitution can afford greater protection than its federal counterpart. See Cooper v. California, 386 U.S. 58, 62 (1967); Autran v. State, 887 S.W.2d 31, 36 (Tex. Crim. App. 1994); Yarborough v. State, 981 S.W.2d 846, 848 (Tex. App.—Houston [1st Dist.] 1998, pet. ref'd). However, we decline to conclude the Texas Constitution provides greater protection concerning whether the sentence is unconstitutionally disproportionate.
This Court has held the proportionality analysis under both the Eighth Amendment to the United States Constitution and Article I, Section 13 of the Texas Constitution is evaluated under the standards enumerated in Solem v. Helm, 463 U.S. 277, 292 (1983), as modified in Harmelin v. Michigan, 501 U.S. 957 (1991). Alberto v. State, 100 S.W.3d 528, 530 (Tex. App.—Texarkana 2003, no pet.); see Cienfuegos v. State, 113 S.W.3d 481, 494–96 (Tex. App.—Houston [1st Dist.] 2003, pet. ref'd). We initially make a threshold comparison of the gravity of the offense against the severity of the sentence, and then consider whether the sentence is grossly disproportionate to the offense. See Jackson v. State, 989 S.W.2d 842, 846 (Tex. App.—Texarkana 1999, no pet.); see also Harmelin, 501 U.S. at 1005 (Kennedy, J., concurring). Only if we find that the sentence is grossly disproportionate to the offense will we compare the sentence received to sentences for similar crimes in the same jurisdiction and to sentences for the same crime in other jurisdictions. Jackson, 989 S.W.2d at 846; Davis v. State, 125 S.W.3d 734, 736 (Tex. App.—Texarkana 2003, no pet.).
Although Holt objected to the enhancement based on the Eighth Amendment, he did not object to the sentences on the specific ground that the sentences were disproportionate, nor did he raise the issue in his motion for new trial. To preserve a complaint for appellate review, an appellant must have presented to the trial court a timely request, objection, or motion stating the specific grounds for the ruling desired. Tex. R. App. P. 33.1(a)(1)(A); Rhoades v. State, 934 S.W.2d 113, 119 (Tex. Crim. App. 1996). The defendant is required to raise a disproportionality objection in a timely manner. Delacruz v. State, 167 S.W.3d 904, 905 (Tex. App.—Texarkana 2005, no pet.); Hookie v. State, 136 S.W.3d 671 (Tex. App.—Texarkana 2004, no pet.); see Rhoades, 934 S.W.2d at 120–21. Holt has failed to preserve error for appellate review.
Even if error had been preserved, Holt has failed to show that his sentence is disproportionate. The sentences were both within the range authorized by statute. Evading detention with a vehicle is a third-degree felony when the defendant has previously been convicted of evading arrest or detention. Tex. Pen. Code Ann. § 38.04(b)(2) (Vernon 2003). Aggravated assault is a second-degree felony. Tex. Pen. Code Ann. § 22.02(b). Due to Holt's prior convictions, the punishment range for both convictions was enhanced to imprisonment of not more than ninety-nine years or less than twenty-five years. See Tex. Pen. Code Ann. § 12.42(d) (Vernon Supp. 2005). Holt received the minimum enhanced sentence under the statute for evading arrest, and his sentence for aggravated assault is in the middle of the permissible range. Holt was convicted of two serious offenses during which he threateningly drove a stolen truck at another human being, led police on a high-speed chase, and collided with a police cruiser. In addition to evidence concerning the burglary of a vehicle and injury to a child convictions, the State introduced evidence of numerous other prior convictions consisting of various offenses including theft, burglary of a building, criminal mischief, and tampering with a witness. We cannot say the severity of the sentences is grossly disproportionate to the gravity of these crimes. Further, there is no evidence in the record comparing the sentences at issue with the sentences imposed against other defendants in this or other jurisdictions who committed a similar offense. See Alberto, 100 S.W.3d at 530; Delacruz, 167 S.W.3d at 906. We overrule Holt's third and fourth points of error.
Conclusion
For the reasons stated, we overrule Holt's points of error. The evidence is legally and factually sufficient. Holt failed to preserve for our review the issue of whether the sentences were disproportionate. Further, even if error had been preserved, Holt has failed to show the sentences were grossly disproportionate.
We affirm the judgment of the trial court.
Jack Carter
Justice
Date Submitted: May 1, 2006
Date Decided: August 1, 2006
Do Not Publish