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Opinion filed May 8, 2008
In The
Eleventh Court of Appeals
__________
No. 11-06-00106-CR
__________
GLEN RAMIREZ, Appellant
V.
STATE OF TEXAS, Appellee
On Appeal from the 241st District Court
Smith County, Texas
Trial Court Cause No. 241-2209-05
M E M O R A N D U M O P I N I O N
Glen Ramirez pleaded guilty to the felony offense of aggravated assault of a peace officer, Brian Allison, with a deadly weapon. Tex. Penal Code Ann. ' 22.02 (Vernon Supp. 2007). The jury assessed punishment at life imprisonment.
Appellant raises three issues on appeal: (1) the sentence was grossly disproportionate to the offense committed; (2) the trial court erred in not allowing appellant to introduce an audio/video recording into evidence that was made while appellant was being transported to jail shortly after the offense; and (3) the trial court erred in not allowing appellant to present testimony from a probation officer as to possible terms and conditions of probation that a court might impose when a jury recommends probation under Tex. Code Crim. Proc Ann. art. 42.12, ' 4 (Vernon Supp. 2007). We affirm.
Background Facts
On the night of October 8, 2005, members of the Smith County Sheriff=s Department responded to a 9-1-1 call from Wendy Osteen, appellant=s common-law wife. Appellant had her up against the refrigerator in their mobile home with a knife to her throat. Osteen laid the telephone down before she could identify herself, and the dispatcher heard them arguing. Osteen was screaming. Appellant screamed at her:
Now, how long before the cops get here? Because you dialed 911. I=m going to shoot at them when they show up. They=re going to be a dead son of a bitch in the morgue because I=m not going to let them get away without telling me B I will not give up.
Appellant repeated his threat during the 9-1-1 call:
I=m going to shoot them. If they show up, I=m going to shoot them. It=s time for me to check out because I=ve been abused for too long by whores like you that go out and f--k neighbor=s daddies.
When the first deputies arrived, appellant had started his motorcycle. When he saw the deputy sheriffs, he ran back inside the trailer. One of the deputies, B.J. Williams (an African-American), turned the motorcycle off so that they could talk to appellant. Appellant told the deputy, ATouch my motorcycle again, and I=ll blow your n----r head off.@ Deputy Williams then saw appellant putting a rifle out the window and pointing it at another deputy, Brian Allison. Appellant also pointed the rifle at Deputy Williams at some point.
Deputy Tommy Goodman testified that he was sent to appellant=s residence as a backup. He had met appellant the previous month when appellant allegedly had threatened some residents on the other side of the mobile home park. Deputy Goodman tried to reason with appellant for over an hour. In response to Deputy Goodman=s request, appellant threw the rifle out. However, appellant then said that he was heavily armed with more weapons; that he would use them if he wanted to, or had to; and that he would shoot to kill. Appellant then showed a shotgun to the officers. At least three of the officers testified that appellant kept telling them that he knew the officers were wearing bulletproof vests and that he would shoot at their heads.
Sergeant Jim Johnson with the sheriff=s department was the patrol supervisor for the shift that night. He also tried to negotiate with appellant. It was obvious to both Deputy Goodman and Sergeant Johnson that appellant was very angry with his wife. Sergeant Johnson told appellant that, if he did not surrender, they would have to call in the Tactical Team (the SWAT team). Sergeant Johnson acknowledged that the SWAT team was rarely called. While talking with appellant, Sergeant Johnson held a tape recorder and recorded their conversation. Sergeant Johnson gave appellant every opportunity to come out, but appellant would not cooperate. Sergeant Johnson then called in the SWAT team under Lieutenant Craig Shelton.
When Lieutenant Shelton arrived, he was advised by Deputy Goodman and Sergeant Johnson that they had negotiated with appellant for well over an hour but that the situation just Akept getting worse and worse.@ Finally, Lieutenant Shelton made the decision to shoot two canisters of tear gas into the trailer. After being teargassed, appellant did come out, but he still resisted and would not cooperate. The SWAT team kept telling him to Aget on the ground, get on the ground,@ but appellant had to be forcibly put on the ground by five or six officers who were wearing tear gas masks. The team had to forcibly restrain him. The officers confirmed that appellant had weapons in the trailer that were loaded and ready to shoot. The standoff had lasted two to three hours.
After various officers had testified about the events that night, Deputy Floriberto Arroyo testified about a threat that appellant had made against the prosecutor just prior to the start of the trial. Deputy Arroyo said that he was the officer who transported appellant to the courtroom from the jail. He and appellant were sitting in the courtroom, waiting for the trial to begin, when the prosecutor came in to set up a computer to play the 9-1-1 tape. The prosecutor was trying to make certain that the jury would be able to hear the tape. When the prosecutor started playing the tape, appellant told Deputy Arroyo that he did not want to hear the tape unless the jury was there. Appellant became very agitated and said that he wanted to leave. When Deputy Arroyo told appellant that he could not leave, appellant stood up and said, AIf they let me out, I=m going to find him.@ Appellant was referring to the prosecutor; however, the prosecutor did not hear the threat. The State=s last witness was Deputy Allison. Deputy Allison identified the rifle that appellant had pointed at him and three other weapons, including an extremely long knife that appellant had held against Osteen=s throat. He acknowledged that appellant had not pointed the rifle at him again after the first time; however, he said that he had been very frightened because he knew that a rifle bullet would penetrate his bulletproof vest. Deputy Allison also confirmed that the whole time they were out there, appellant kept saying, AI=m going to hit you in the head. I=m not aiming for your vest. I=m going to shoot you in the head.@
All of the officers testified that it would concern them if appellant was let back out on the street. Deputy Allison was the officer who transported appellant to jail. Deputy Allison said that he believed appellant was intoxicated that night and that, on the way to jail, appellant told him that he had been drinking Everclear and grape juice. Deputy Allison said that appellant did not give him any problems during the fifteen or twenty minute ride to jail but that appellant was in a plastic-type handcuff that prevented him from moving his arms around.
Appellant attempted to call Phillip Johnson, a probation officer, to testify about terms and conditions of community supervision that a court might set, including a condition of 180 days in jail. The court sustained the prosecutor=s objection and did not allow the testimony.
Osteen, appellant=s common-law wife, testified for appellant. She told the jury that they had been drinking, that appellant had been drinking Everclear with grape juice, and that appellant had become extremely angry when she told him about a sexual encounter with another man. She related how appellant had held her against the refrigerator with a knife to her throat and how she had dialed 9-1-1 but had set the telephone down. Osteen had run out the door and was not in the trailer when appellant had the confrontation with the sheriff=s department. Osteen emphasized that this was a one-time occurrence and that appellant had been very good with her grandchildren. However, she admitted that appellant had assaulted her twice before to the extent that it hurt.
The Sentence
In appellant=s first issue, he argues that the life sentence assessed by the jury was grossly disproportionate to the offense committed, in violation of his constitutional rights under the Eighth Amendment of the United States Constitution and Article I, section 13 of the Texas Constitution. Although appellant raises both federal and state constitutional claims, he acknowledges that this court should address his claims together. See Simmons v. State, 944 S.W.2d 11, 14 (Tex. App.CTyler 1996, pet. ref=d); Davis v. State, 905 S.W.2d 655, 665 (Tex. App.CTexarkana 1995, pet. ref=d).
Appellant did not raise the issue of cruel and unusual punishment before the trial court and has, therefore, waived appellate consideration of this issue. See Rhoades v. State, 934 S.W.2d 113, 120 (Tex. Crim. App. 1996); Curry v. State, 910 S.W.2d 490, 497 (Tex. Crim. App. 1995); Steadman v. State, 31 S.W.3d 738, 742 (Tex. App.CHouston [1st Dist.] 2000, pet. ref=d); see also Tex. R. App. P. 33.1. However, even absent waiver, we conclude that appellant=s sentence did not constitute cruel and unusual punishment.
The legislature is vested with the power to define crimes and prescribe penalties. See State ex rel. Smith v. Blackwell, 500 S.W.2d 97, 104 (Tex. Crim. App. 1973); Simmons, 944 S.W.2d at 15; Davis, 905 S.W.2d at 664. The punishment range for a first degree felony is imprisonment for life or for any term of not more than ninety-nine or less than five years and a fine not to exceed $10,000. Tex. Penal Code Ann. ' 12.32(a) (Vernon 2003). Because appellant=s punishment falls within the range set forth by the legislature, his punishment is not prohibited as cruel, unusual, or excessive per se. See Harris v. State, 656 S.W.2d 481, 486 (Tex. Crim. App. 1983); Hill v. State, 493 S.W.2d 847, 849 (Tex. Crim. App. 1973).
That appellant=s punishment falls within the range does not end the inquiry. A prohibition against grossly disproportionate punishment survives under the Eighth Amendment apart from any consideration of whether the punishment assessed is within the range established by the legislature. See Harmelin v. Michigan, 501 U.S. 957 (1991); Solem v. Helm, 463 U.S. 277, 290 (1983). Solem had suggested 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. In light of Harmelin, the test in Solem appears to have been reformulated as an initial threshold comparison of the gravity of the offense with the severity of the sentence. Then, if that initial comparison created an inference that the sentence was grossly disproportionate to the offense, an appellate court should consider the other two Solem factors: (1) sentences for similar crimes in the same jurisdiction and (2) sentences for the same crime in other jurisdictions. See McGruder v. Puckett, 954 F.2d 313, 316 (5th Cir. 1992); Mullins v. State, 208 S.W.3d 469, 470 (Tex. App.CTexarkana 2006, no pet.); Lackey v. State, 881 S.W.2d 418, 420-21 (Tex. App.CDallas 1994, pet. ref=d).
In view of the facts of this case we cannot say that appellant=s sentence is grossly disproportionate. See Rummel v. Estelle, 445 U.S. 263 (1980). Moreover, there is no evidence in the record from which we can compare his sentence to the sentences imposed on other persons for similar crimes in the same jurisdiction or to sentences for the same crime, involving similar circumstances, in other jurisdictions. See Latham v. State, 20 S.W.3d 63, 69 (Tex. App.CTexarkana 2000, pet. ref=d); Davis, 905 S.W.2d at 664-65. Appellant=s first issue is overruled.
The Audio/Video Recording
In appellant=s second issue, he argues that the trial court erred in refusing to allow him to introduce into evidence an audio/video recording that was made during his transport to jail. Trial counsel wanted to show the jury that appellant was cooperative with Deputy Allison. Because appellant had elected not to testify, the prosecutor objected to admission of the audio/video recording on the grounds that statements of the defendant were inadmissible hearsay, that the video showing appellant=s cooperation would simply be a substitute for hearsay oral statements by appellant (nonverbal acts to prove the truth of the matter asserted), and that the audio/video recording was cumulative of Deputy Allison=s testimony that appellant was cooperative on the way to jail. The trial court ruled that the audio/video recording was inadmissible.
Appellant acknowledges that the standard of review for evidence rulings by a trial court is the abuse-of-discretion standard. Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1991). However, appellant argues that, when the prosecutor asked questions as to what appellant said in the patrol car on the way to jail, the prosecutor Aopened the door@ because he left a false impression. Theus v. State, 845 S.W.2d 874, 878 (Tex. Crim. App. 1992). Appellant states that the false impression was that appellant lacked concern for his crime.
The State had asked Deputy Allison if, during the ride to jail, appellant had been cooperative. Deputy Allison responded, AYes sir. He gave me no problems.@ Deputy Allison also stated that appellant spent most of the trip asking to have help removing the tear gas from his eyes. Appellant objected to Deputy Allison=s reference to appellant=s statements about the tear gas in his eyes because he did not Awant to leave the jury with the impression that that=s [sic] the only statement that was made.@ The court ruled that appellant could ask questions on cross-examination concerning appellant=s statements about the tear gas in his eyes but that appellant could not go into anything else on the audio/video recording.
Through cross-examination, Deputy Allison confirmed that appellant conversed in a normal manner and simply asked Deputy Allison to pull over and help get the tear gas out of appellant=s eyes. We find that the trial court=s ruling on the inadmissibility of the recording was correct; it certainly was within the zone of reasonable disagreement. Torres v. State, 71 S.W.3d 758, 760 (Tex. Crim. App. 2002). Appellant=s second issue is overruled.
The Probation Officer=s Proposed Testimony
In appellant=s third and final issue, he argues that the trial court erred in not allowing the probation officer assigned to the court to give testimony about terms and conditions that the court might impose if the jury recommended community supervision. Specifically, appellant wanted the jury to know that the court could order appellant to serve up to 180 days in jail as a condition of community supervision. Tex. Code Crim. Proc. Ann. art. 42.12, ' 12(a) (Vernon Supp. 2007). Appellant argued to the trial court that this possible condition should be made known to the jury because the prosecutor had stated to the jury at the outset of the trial that community supervision meant that appellant could ride down the elevator with them as they left the courthouse. We note that, in arguing against community supervision in closing argument, the prosecutor again emphasized that appellant would go down the elevator with them and be Aout with all of us@ as opposed to the jury deciding that appellant should go to the penitentiary.
Unlike the guilt phase, the question at punishment is not whether the defendant has committed a crime but, instead, what sentence should be assessed. Ellison v. State, 201 S.W.3d 714, 718 (Tex. Crim. App. 2006); Haley v. State, 173 S.W.3d 510, 515 (Tex. Crim. App. 2005). In Ellison, the defendant argued that it was improper for a probation officer to testify at punishment about a defendant=s suitability for community supervision because suitability was not an issue for the jury. The court rejected this claim, holding that suitability is a matter relevant to sentencing under Tex. Code Crim. Proc. Ann. art. 37.07, ' 3(a) (Vernon Supp. 2007). The Ellison court reiterated that the purpose of the bifurcated trial procedure was to Atake the blindfolds off the judge or jury when it came to assessing punishment.@ Ellison, 201 S.W.3d at 718; Davis v. State, 968 S.W.2d 368, 372 (Tex. Crim. App. 1998).
In Ivey v. State, No. 03-06-00683-CR, 2007 WL 4245892 (Tex. App.CAustin Oct. 19, 2007, pet. filed), Ivey did not want probation for his DWI conviction and, on appeal, contended that the trial court erred by admitting testimony from three witnesses concerning the conditions of probation for the offense. A probation officer testified that a defendant would not receive alcohol or substance abuse counseling if he were sentenced to Astraight@ jail time. A counselor then testified regarding the typical counseling requirements for a defendant placed on probation. The third witness, an assistant Travis County attorney, testified about the requirements for a defendant to be eligible for jury recommended probation under Article 42.12, section 4. The court held that the evidence was admissible because Arelevant@ evidence in the punishment contest is that which helps the jury Atailor the sentence to the particular offense@ and Atailor the sentence to the particular defendant.@ Ivey, 2007 WL 4245892 at *4; Najar v. State, 74 S.W.3d 82, 86 (Tex. App.CWaco 2002, pet. dism=d) (quoting Rogers v. State, 991 S.W.2d 263, 265 (Tex. Crim. App. 1999)).
The trial court in this case erred in not allowing the probation officer to testify about the possible conditions of community supervision that the court might or might not impose. Appellant could not otherwise counter the prosecutor=s argument that community supervision meant that appellant would be going down the elevator with them. We now turn to a harm analysis pursuant to Tex. R. App. P. 44.2(b) to determine if the error was such as to affect the substantial rights of appellant.
The inquiry is whether appellant=s substantial rights were violated and whether appellant=s punishment was affected by the court=s error. King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997); Bain v. State, 115 S.W.3d 47, 51 (Tex. App.CTexarkana 2003, pet. ref=d). A substantial right is affected when the error had a substantial and injurious effect or influence in determining the jury=s verdict. King, 953 S.W.2d at 271. To determine the effect of the omission of the probation officer=s testimony, we consider the evidence the jury heard and the decision of the jury concerning the appropriate sentence for appellant.
We need not detail the evidence again. Every officer testified that he would be very concerned if appellant were allowed to be out on the street again. Osteen testified about appellant=s holding a knife to her throat and having assaulted her twice before. The jury heard appellant=s voice on the 9-1-1 tape and was told that appellant kept telling the officers that he would shoot for their heads, not at their bulletproof vests. Appellant never did cooperate until he had been teargassed and forcibly put in handcuffs. It is clear from the jury=s assessing the maximum punishment of life imprisonment that the jury was not considering a recommendation that the court suspend the imposition of the sentence and place appellant on community supervision under Article 42.12, section 4. In light of the evidence, we cannot say that the omitted testimony of the probation officer affected appellant=s punishment. See Scott v. State, 162 S.W.3d 397, 405 (Tex. App.CBeaumont 2005, pet. ref=d); Bain, 115 S.W.3d at 51-52. Appellant=s third issue is overruled.
This Court=s Ruling
The judgment of the trial court is affirmed.
TERRY McCALL
JUSTICE
May 8, 2008
Do not publish. See Tex. R. App. P. 47.2(b).
Panel consists of: Wright, C.J.,
McCall, J., and Strange, J.