COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-14-00213-CR
NO. 02-14-00214-CR
NO. 02-14-00215-CR
JOSEPH ALAN NEELEY APPELLANT
V.
THE STATE OF TEXAS STATE
----------
FROM CRIMINAL DISTRICT COURT NO. 2 OF TARRANT COUNTY
TRIAL COURT NOS. 1338837D, 1338838D, 1338699D
----------
MEMORANDUM OPINION 1
----------
Appellant Joseph Alan Neeley appeals his sentences for aggravated
assault with a deadly weapon, burglary of a habitation, and possession of less
1
See Tex. R. App. P. 47.4.
than a gram of methamphetamine. 2 In his only point, he argues that the
sentences are grossly disproportionate to the facts of his offenses and are
therefore unconstitutional. We affirm.
Background Facts
One Saturday in the summer of 2013, after eating lunch with her mother
and her sister, high school student D.L. (Danielle) 3 was driving on a one-way
access road to a highway. Appellant, driving the wrong way on the access road,
crashed with Danielle’s car. V.L. (Vanessa), Danielle’s mother, had been driving
behind her on the access road and ran to her after the accident occurred.
Vanessa noticed that one of Danielle’s feet had been displaced and that Danielle
was screaming; Vanessa called 9-1-1. Appellant walked toward Danielle’s car
and looked at her before running away. An ambulance took Danielle to a
hospital, where she received treatment for a broken right ankle.
After arriving at the scene, a police officer found that appellant’s car did not
have a license plate attached to its front and back ends. But the car contained a
passport and a birth certificate bearing appellant’s name. It also contained pipes
used for smoking methamphetamine.
2
Appellant does not ask us to reverse his convictions; he requests only that
we “reverse his sentences . . . and remand for a new sentencing hearing.”
3
To protect the identity of persons associated with this appeal, we use
aliases. See Tex. R. App. P. 9.10(a)(3), (b); McClendon v. State, 643 S.W.2d
936, 936 n.1 (Tex. Crim. App. [Panel Op.] 1982).
2
Appellant ran across a grassy field and eventually entered a residential
neighborhood. A witness of the accident followed him in a car and called the
police. When appellant arrived at the house of Shahram Masoumi, who was not
there at the time, he broke through and damaged the back fence and back door,
broke a satellite, stayed inside the house for several minutes, and left.
Appellant then jumped over a fence and entered another house, where
fifteen-year-old D.S. (Dylan) and A.S. (Amy), Dylan’s three-year-old sister, were
present. Upon entering, appellant told Dylan that he had crashed his car and
that he wanted to “lay low for a while.” Dylan heard sirens and discerned that the
police were looking for appellant.
Appellant remained in Dylan’s house for approximately thirty minutes.
While there, he stated that he would not harm Dylan as long as Dylan cooperated
with his requests. Dylan was scared for his and Amy’s safety and believed that
they could not leave. Appellant drank some water, washed his face, and lay on a
bed to catch his breath. He then told Dylan to go outside and to “ward off the
police that were around the area” while appellant remained in the house with
Amy. After crossing his front yard, Dylan talked to a police officer. To “play it
smart,” Dylan did not tell the officer about appellant’s presence in the house, and
3
Dylan returned to the house. At some point, appellant told Dylan that he would
slit Dylan’s throat if Dylan did not do what appellant asked of him. 4
After appellant stole a shirt and a pair of shoes and put them on, Dylan told
appellant that his parents were likely on their way home. Appellant eventually
told Dylan to take off his shirt and his glasses; he planned to create a diversion
by having himself and Dylan run out of the house in opposite directions.
Attempting to ensure his and Amy’s safety, Dylan took off his shirt and glasses.
But as Dylan opened the door to start running, he saw his parents walking toward
the house. Dylan began to tell his father what had happened in the last half hour,
and his father ran into the house. Appellant escaped through a window.
The police eventually found appellant in that neighborhood. An officer told
appellant to show his hands and to get on the ground, and appellant repeatedly
asked the officer to shoot him. That officer could not restrain appellant on her
own, but with the use of two Tasers and other physical force, the police
eventually detained appellant, who was flailing, screaming, sweating, and
appeared to be intoxicated. During the struggle that resulted in appellant’s
detainment, two police officers were injured. In appellant’s possession, the
4
Dylan testified, “I [felt] like at any moment . . . the whole situation could
have just turned the opposite direction, so I tried to keep it as professional and
calm as I could.”
4
police found a wallet that contained marijuana, Xanax, and methamphetamine;
two screwdrivers; a razor blade; 5 and a cell phone.
After appellant’s arrest, Arlington police officer Phillip Hill spoke with Dylan,
who was nervous and “visibly shaken up.” Officer Hill found appellant’s
discarded clothing inside Dylan’s house. Dylan identified appellant as the man
who had entered his house and had threatened him. Appellant received medical
treatment at a hospital, where blood and urine test results established the
presence of alcohol, cannabinoids (from using marijuana), amphetamines, and
benzodiazepines (a class of drugs that includes Xanax) in his body. 6
Through separate indictments, appellant was charged with burglary (by
entering a habitation and committing or intending to commit kidnapping),
aggravated assault with a deadly weapon (based on the crash), and possessing
less than a gram of methamphetamine. In each case, he received appointed
counsel; filed several pretrial motions, including an application for placement on
community supervision “for whatever punishment may be assessed”; and chose
the jury to assess his punishment if he was convicted.
At a combined trial on the charges, appellant pled guilty to possessing
methamphetamine and to aggravated assault, but he pled not guilty to burglary.
5
During the punishment phase of the trial, appellant testified that he carried
the razor blade to cut lines of methamphetamine.
6
A toxicologist testified that when these substances are taken together,
their negative effects may be multiplied. Specifically, he explained that “[a]lcohol
increases the danger or the negative side effects of just about every other drug.”
5
After hearing evidence and arguments and briefly deliberating, the jury found him
guilty of burglary. The jury heard evidence concerning appellant’s punishment 7
and assessed twenty-five years’ confinement for burglary, twenty years’
confinement for aggravated assault, and two years’ confinement for possessing
methamphetamine. The jury did not recommend appellant’s placement on
community supervision for any of the offenses. The trial court sentenced him in
accordance with the jury’s verdicts and ordered the sentences to run
concurrently.
Appellant filed a motion for new trial in which he argued that his sentences
were “grossly disproportionate to the facts of the case[s] and reflected no
consideration of mitigative evidence[,] contravening the [s]tate and [f]ederal
[c]onstitutional prohibition[s] against cruel and unusual punishment.” The trial
court did not expressly rule on the motion, and it was therefore overruled by
operation of law. 8 Appellant brought these appeals.
Allegedly Unconstitutional Punishment
In his sole point, appellant contends that his sentences are unconstitutional
because they are grossly disproportionate to the facts of the offenses and are
therefore cruel and unusual. 9 See U.S. Const. amend. VIII; Tex. Const. art. I,
7
We will summarize this evidence below.
8
See Tex. R. App. P. 21.8(a), (c).
9
In the trial court and on appeal, appellant has raised federal and state
constitutional complaints, but he has not analyzed them separately. We will
6
§ 13. He raised this argument for the first time in his motion for new trial. We
review a trial court’s denial of a motion for new trial for an abuse of discretion.
Colyer v. State, 428 S.W.3d 117, 122 (Tex. Crim. App. 2014). A trial court
abuses its discretion by denying a motion for new trial when no reasonable view
of the record could support its ruling. Id.
The factfinder’s discretion to impose any punishment within a prescribed
statutory range is essentially “unfettered.” Ex parte Chavez, 213 S.W.3d 320,
323 (Tex. Crim. App. 2006). Subject only to an “exceedingly rare” and
“somewhat amorphous” gross-disproportionality review required by the Eighth
Amendment, a punishment that falls within the legislatively-prescribed range and
that is based upon the factfinder’s informed normative judgment is unassailable
on appeal. Id. at 323–24; Adetomiwa v. State, 421 S.W.3d 922, 928 (Tex.
App.—Fort Worth 2014, no pet.); see Lawrence v. State, 420 S.W.3d 329, 333
(Tex. App.—Fort Worth 2014, pet. ref’d) (“Generally, punishment assessed within
the permitted statutory range is not subject to a challenge for excessiveness.”);
Sample v. State, 405 S.W.3d 295, 304 (Tex. App.—Fort Worth 2013, pet. ref’d)
(stating the same).
When deciding whether an exceptional sentence might be grossly
disproportionate to an offense committed, we compare the gravity of the offense
consider these complaints together. See Cantu v. State, 939 S.W.2d 627, 645
(Tex. Crim. App.) (declining to interpret the language of our state constitution’s
prohibition of inflicting cruel or unusual punishment as more expansive than the
federal constitution’s similar provision), cert. denied, 522 U.S. 994 (1997).
7
committed with the severity of the sentence. 10 Lawrence, 420 S.W.3d at 333;
see also Alvarez v. State, 63 S.W.3d 578, 581 (Tex. App.—Fort Worth 2001, no
pet.) (“We judge the gravity of the offense in light of the harm caused or
threatened to the victim or society and the culpability of the offender.”). We also
consider the likely impact of the defendant’s criminal history on the factfinder’s
punishment decision. Sample, 405 S.W.3d at 304–05 (recognizing that a repeat
offender’s sentence is not based “merely on that person’s most recent offense
but also on the propensities he has demonstrated over a period of time during
which he has been convicted of and sentenced for other crimes”); Culton v.
State, 95 S.W.3d 401, 403–04 (Tex. App.—Houston [1st Dist.] 2002, pet. ref’d).
By the effects of his guilty pleas and after considering the evidence
presented at trial, the jury convicted appellant, who was thirty-three years old at
the time of the trial, of three felony offenses: possession of less than a gram of
methamphetamine, which (as a state jail felony) carries a punishment range of
up to two years’ confinement; aggravated assault with a deadly weapon, which
(as a second-degree felony) carries a punishment range of up to twenty years’
10
If we determine that a sentence is grossly disproportionate to an offense,
we may also consider the sentences imposed on other criminals in the same
jurisdiction and the sentences imposed for the commission of the same crime in
other jurisdictions. See Hammer v. State, No. 02-13-00480-CR, 2015 WL
1407385, at *3 (Tex. App.—Fort Worth Mar. 26, 2015, no pet.) (citing Moore v.
State, 54 S.W.3d 529, 541 (Tex. App.—Fort Worth 2001, pet. ref’d)); Pollard v.
State, Nos. 02-11-00496-CR, 02-11-00497-CR, 02-11-00498-CR, 02-11-00499-
CR, 02-11-00500-CR, 2012 WL 5447955, at *1 (Tex. App.—Fort Worth Nov. 8,
2012, no pet.) (mem. op., not designated for publication). Appellant did not
present any such evidence.
8
confinement; and burglary of a habitation, which, under the circumstances of this
case (as a first-degree felony) carries a punishment range of confinement for up
to ninety-nine years or life. See Tex. Penal Code Ann. §§ 12.32(a), .33(a),
22.02(a)(2), (b), 30.02(a)(1), (d) (West 2011), § 12.35(a) (West Supp. 2014); Tex.
Health & Safety Code Ann. § 481.115(b) (West 2010). The jury assessed the
maximum punishment for possession of methamphetamine and for aggravated
assault (two and twenty years’ confinement, respectively), but it assessed only
one quarter of the maximum confinement—twenty-five years—for burglary. 11
The jury could have rationally determined that appellant’s crimes were
sufficiently grave to justify these sentences. The evidence shows that appellant’s
possession and use of methamphetamine contributed to the aggravated assault
and that as a result of this assault, Danielle suffered an ankle injury 12 that caused
significant pain and will affect her for the rest of her life. In the punishment
phase, Danielle testified that when the crash occurred, she “looked down, and
[her] foot was twisted in a way that . . . wasn’t supposed to be twisted.” She
stated that appellant “ran instead of helping [her] while [she] was crying and . . .
screaming.” After the heavy swelling in Danielle’s ankle subsided, she had two
surgeries. She also required physical therapy for seven or eight months.
11
Appellant concedes that his sentences are “within the applicable
statutory penalty ranges.”
12
From the wreck, Danielle also suffered from a rash on her chest and a
swollen lip.
9
Danielle’s foot will never be normal again; for example, she cannot kick a ball,
run, or walk up stairs normally. Danielle has nightmares about the crash.
According to Vanessa, at the time of the trial, which occurred nine months after
the wreck, Danielle’s ankle was still not healed; she was still limping, and her
injured ankle looked different than her other ankle. Vanessa explained,
“Danielle’s not the same person she was, not physically, not emotionally. She’ll
never be the same person. We’ll never be the same family.”
The evidence also shows that during his crime spree, appellant broke into
multiple homes (damaging and stealing property in the process) and confined
and threatened Dylan and Amy, who were both children, for approximately half
an hour. Particularly, appellant threatened to slit Dylan’s throat if Dylan did not
do what appellant commanded. Later, appellant resisted police officers’ attempts
to detain him, causing minor injuries to two of them.
The jury also heard about appellant’s criminal activity that was unrelated to
the events supporting these three convictions. On the day before his arrest for
the events leading to his convictions in these cases, appellant was spotted
outside of an Addison apartment on an early morning, was suspected of
committing burglary of a habitation, 13 and was arrested for evading arrest and
possessing methamphetamine. On that occasion, after the police found him and
13
A caller to the police reported seeing a man jump over a balcony into a
patio area and then jumping back over the balcony with a “cylindrical object in his
hand.”
10
caught up to him while he was running, he engaged in a physical struggle but
was finally subdued with the assistance of three officers, handcuffs, and leg
restraints. Appellant, who was intoxicated, possessed a small baggy containing
methamphetamine and one Xanax pill.
Appellant also has two older convictions for driving while intoxicated (DWI).
The record indicates that concerning one of those DWIs, appellant was stopped
and arrested after driving 113 miles per hour. With regard to appellant’s first DWI
conviction, he was placed on community supervision but violated the terms of it
by committing another DWI. Appellant committed the three offenses at issue
only a year after being discharged from community supervision for his second
DWI.
Appellant presented evidence that the jury could have considered (and
perhaps did consider) 14 as mitigating. Appellant’s mother, V.P. (Violet), testified
that when appellant was very young, his father, A.N. (Aaron), was physically
abusive and used alcohol and drugs to the point of intoxication. According to
Violet, Aaron would choke her in front of appellant, prompting appellant to ask
Aaron not to kill Violet. Violet testified that Aaron was strict and mean to
appellant and that when appellant was three years old, Aaron took him out of the
14
Appellant argues that mitigating evidence, including issues related to his
addictions to drugs and alcohol, was not “fairly considered by the jury as
reflected by the grossly disproportionate maximum sentence assessed.” But the
jury could have considered this evidence when assessing appellant’s
confinement for burglary at twenty-five years, which is on the lower end of the
first-degree felony punishment range.
11
state and separated from Violet. Also, Violet admitted that before Aaron left her,
while she still had custody of appellant, she was not a good mother and made
“very bad decisions.”
Appellant returned to Texas and began living with Violet again when he
was eleven years old. He told Violet at that time that he had been living in
shelters, that he had been expected to “take care of” his younger brother, and
that Aaron had been abusive to various women after leaving Texas.
Concerning appellant’s development after he began living with her again,
Violet testified,
Joseph has always been a great kid. He’s always been good to me.
He’s always been respectful. He’s always been an achiever. . . .
I was a waitress for many years, so I taught him how to be a
server. From there, he got a job at a five-star restaurant, worked his
way up in the company to a manager. From there, he met someone
who gave him an opportunity at Bank of America. From that, with
hardly no education, he ran with it and learned on his own through
the company. He eventually built himself up to be a mortgage
broker. Bank of America sent him to college, and he got married, he
had a family.
Violet acknowledged, however, that appellant has a problem with abusing alcohol
and drugs that first surfaced when he began getting laid off from work. She
testified that appellant began using methamphetamine when he was a server at a
restaurant so that he could work at a second job without becoming tired.
Appellant has been married twice. He has a total of three children,
including two through his current wife. Upon his arrest for these charges,
appellant stayed in jail for six months before he was released on bond.
12
According to Violet, since appellant’s release, he got a job, paid some child
support to his first wife, and sought treatment for his substance abuse (including
attending Alcoholics Anonymous meetings). Violet recognized, however, that
appellant had previously sought counseling for abusing alcohol before
committing these offenses.
Violet testified that appellant has a “heart of gold,” is a great father, and is
“very protective”; she explained that appellant does not show these qualities
when he is using drugs. She asked the jury to recommend appellant’s placement
on community supervision because she believed “in [her] heart and [her] soul
that putting [appellant] in prison [would] not . . . do any good.” She testified,
“[Appellant has] three children that depend on him [and] that idolize him, and . . .
it’s going to deeply affect the rest of their lives if he goes to prison.”
William Ritchie, who works with troubled youth, testified that he has known
appellant since 2000, when they were both waiters at a restaurant. Ritchie
stated that appellant is an “incredible” and “valiant” father who has worked hard
to provide for his family. Ritchie opined that appellant had the drive and desire to
succeed on probation, and Ritchie stated that he could help hold appellant
accountable for the terms of probation if the jury recommended it. According to
Ritchie, appellant’s actions on the date of these offenses were “absolutely out of
character.” But Ritchie recognized that appellant’s prior placement on probation
for his DWI offenses had not abated future criminal activity. He also conceded
13
that appellant had not called him for support before committing several offenses
over the course of two days in August 2013.
Raymond Arendondo, who supervised appellant at a car dealership where
appellant was working at the time of trial, testified that he met appellant at a
church retreat and that appellant had attempted to be active in church since then.
Arendondo stated that at work, appellant was punctual and dependable. He
testified that appellant’s work schedule would allow him to meet requirements of
probation and attend Alcoholics Anonymous meetings.
Mary Jo Gutierrez, a probation officer, told the jury about many potential
conditions of probation, including committing no further offenses, reporting
regularly to a probation officer, not using drugs or alcohol, completing community
service, and paying a victim’s restitution. She also spoke about drug treatment
programs—including long-term inpatient treatment—that could be available to
appellant if the jury recommended probation for him. Gutierrez opined, however,
that a defendant is not a good candidate for probation when in relation to a
different offense in the past, the defendant has violated probation by committing
a new offense.
In his punishment-phase testimony, appellant apologized to Dylan and
Amy’s family and Danielle and Vanessa’s family for the harm he had caused
them. He stated that because of his drug use at the time, he did not remember
anything about getting arrested or being confined for the incidents in Addison or
in Arlington over the course of two days in August 2013. He explained that near
14
that time, he was taking several prescribed medications to help reduce anxiety
and to sleep and that he mixed those medications with drinking alcohol and using
methamphetamine.
Appellant explained that his “dad was a truck driver” who “took [him] from
[his] mother.” He stated that he constantly moved to different cities and never
went to the same school for consecutive years. He explained that during that
time, his father used methamphetamine and was physically abusive to him and
his brother.
Appellant admitted that he was addicted to alcohol and illegal drugs, and
he testified that he could benefit from treatment programs. 15 He explained that
upon his release from six months of pretrial confinement for these three offenses,
he began attending Alcoholics Anonymous or a similar program for drug abusers
four times per week and had not used alcohol or any illegal drugs. 16 Appellant
also testified that he attempted to go to inpatient drug treatment but that he could
not afford it. He explained that he would be willing to comply with all conditions
of probation, including completing drug treatment and 320 hours of community
service and paying restitution to Danielle. When his counsel asked why he
deserved probation after threatening to slit Dylan’s throat, appellant testified,
15
Appellant began using marijuana when he was eleven years old and later
used methamphetamine and cocaine.
16
Appellant testified that he had been drug tested three times since his
release and that he had passed each test.
15
I’m not saying I deserve probation, not at all. I’m just begging for the
mercy of the jury and the Judge today. That was not in my
character. And I do have a problem, and I just don’t want to see
anybody else get hurt because of me. I don’t want my children to
grow up without a father.
Appellant’s wife of nine years, K.N. (Kim), testified that a couple of months
before the accident, appellant’s behavior began to change: he became very
nervous, looked different, did not sleep, and cried a lot. According to Kim, after
his most recent release from confinement, while he was awaiting trial of these
charges, appellant found God and thrived in his relationship with her and their
children. She testified that appellant needed inpatient drug treatment and that
she could survive financially while he received it. 17 While Kim admitted that there
was “no excuse” for appellant’s crimes, she asked the jury to place appellant on
probation; she pled for “compassion and . . . forgiveness for a . . . beautiful
person.”
But when the State asked Danielle whether appellant should be placed on
probation, she said no and explained,
[W]hat he did to me, it may be minor in some people’s eyes because
it’s just an ankle, but I don’t think [appellant has] learned from his
[DWIs] or from any of his past accidents. I don’t think probation is
going to help because he’s already been on probation, and I don’t
think he should be free. I don’t think he should get out of jail
because this time it was just my ankle; next time, what is it going to
be? Another child dead? Another child with a broken ankle?
Another adult? Someone dead eventually? And I don’t think he
should be free to teach his kids that it’s okay to break someone’s
17
She also testified that she and the children could survive financially if
appellant was confined.
16
ankle and to ruin someone’s life and just get off on probation. I don’t
want to see him free. I want to see him in prison. I want to see him
in jail. And I don’t think he’s going to learn anything if he has
probation because he hasn’t learned from any of his past mistakes.
Considering all of these facts and the other evidence presented to the
jury, 18 we cannot conclude that the jury acted unreasonably or arbitrarily when
exercising its near-unfettered discretion to impose the sentences at issue. See
Chavez, 213 S.W.3d at 323. Even while recognizing the mitigating facts
described above, the jury could have rationally assessed lengthy terms of
confinement based, in part, on the harm or threatened harm to the victims of
appellant’s crimes at issue and on his failure to abate criminal conduct after
receiving leniency, in the form of community supervision, for prior offenses. 19
See Sample, 405 S.W.3d at 304–05 (considering a defendant’s criminal history in
determining whether his sentence was constitutionally excessive); Alvarez, 63
S.W.3d at 581 (considering the harm caused and threatened to the victim); see
also Stuer v. State, No. 02-14-00243-CR, 2015 WL 1407750, at *3–4 (Tex.
App.—Fort Worth Mar. 26, 2015, no pet.) (mem. op., not designated for
publication) (stating that because a defendant had received leniency with regard
18
We note that we are reviewing the evidence based on a cold record,
while the jury saw the witnesses, including appellant, and could judge their
credibility and sincerity. See Franklin v. State, 193 S.W.3d 616, 620 (Tex.
App.—Fort Worth 2006, no pet.) (explaining that the jury is free to accept or
reject any or all of the evidence of either party).
19
We reject appellant’s argument that the evidence showed only “a single
day of escalating poor choices.”
17
to past crimes by being placed on community supervision but had violated terms
of the community supervision, the jury “could have . . . reasonably rejected [the
defendant’s] claim” that she would be able to refrain from committing more
crimes). Likewise, we conclude that the trial court did not abuse its discretion by
denying (by operation of law) appellant’s motion for new trial based on the
alleged excessiveness of his sentences. Colyer, 428 S.W.3d at 122.
Appellant relies on the court of criminal appeals’s decision in Jackson v.
State, 680 S.W.2d 809 (Tex. Crim. App. 1984). There, the court held that a trial
judge had abused his discretion in setting punishment when the judge had not
presided over the trial on the appellant’s guilt and had not allowed either party to
offer punishment-related evidence. Id. at 810–14. Here, the jury received
substantial evidence in the guilt-innocence and punishment phases of appellant’s
trial; appellant’s reliance on Jackson is therefore misplaced. See id.
For all of these reasons, we conclude that appellant’s sentences are not
unconstitutionally excessive and that the trial court did not abuse its discretion by
denying his motion for new trial. We overrule his sole point.
18
Conclusion
Having overruled appellant’s only point, we affirm the trial court’s
judgments.
/s/ Terrie Livingston
TERRIE LIVINGSTON
CHIEF JUSTICE
PANEL: LIVINGSTON, C.J.; GARDNER, J.; and CHARLES BLEIL (Senior
Justice, Retired, Sitting by Assignment).
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: July 9, 2015
19
Joseph Alan Neeley v. State
Combined Opinion