COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-12-00238-CR
RODERICK A. WILLIAMS APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM COUNTY CRIMINAL COURT NO. 5 OF TARRANT COUNTY
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MEMORANDUM OPINION 1
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A jury convicted Appellant Roderick A. Williams of family violence assault,
and the trial court sentenced him to 365 days’ confinement. In his sole issue,
Appellant argues that his sentence was excessive and disproportionate,
considering the actions for which he was convicted. Because the trial court
committed no reversible error, we affirm the trial court’s judgment.
1
See Tex. R. App. P. 47.4.
Appellant was accused of pulling his wife’s hair and slapping her on the
cheek. The jury returned a general verdict of guilty. The complainant testified
that she had been angry because Appellant had not gone to the hospital with her
when she gave birth to their son. After she returned home, she was feeding the
baby and lashed out at Appellant, calling him a name. She testified that
Appellant had responded by grabbing her hair and slapping her. She testified
that the slap hurt. She responded by calling 911, and she also called Appellant’s
parole officer. The complainant admitted that she had told the parole officer that
she wanted Appellant to go back to jail, but she also testified that by the time of
trial she was no longer angry with him and really did not want him prosecuted.
Although the original reports suggested that she had been holding the baby at
the time Appellant slapped her, at trial, she testified that she had already put the
baby down before Appellant slapped her.
The State proved that Appellant had an extensive history of prior felony
convictions, including a prior assault that had been alleged as family violence.
The record reflected, and the trial court found, that the family violence allegation
had been waived in that prior case.
Appellant was allowed to present argument regarding the punishment that
he thought was appropriate. Appellant argued, essentially, that the punishment
should fit the crime and that the crime was minor. He also focused on the fact
that the complainant did not want to prosecute him but, rather, wanted to marry
him. Appellant did not specifically argue proportionality.
2
Although the judgment states that “the Defendant being asked by the Court
if he had any sufficient reason why sentence should not be pronounced against
him failed to give such reason,” the reporter’s record contradicts this statement.
The trial court did not ask Appellant that question or any similar question to give
him the opportunity to raise the issue he raises on appeal. Thus the trial court
contravened article 42.07 of the code of criminal procedure. 2
The State argues that Appellant failed to preserve his complaint. The
Texas Court of Criminal Appeals instructs us that “[t]he requirement that an
objection be raised in the trial court assumes that the appellant had the
opportunity to raise it there,” 3 and that the idea that “issues of error preservation
are systemic in first-tier review courts,” stated in its 2009 case Menefee v. State 4
and elsewhere, “means only that a court of appeals may not reverse a judgment
of conviction without first addressing any issue of error preservation.” 5 “Given
2
See Tex. Code Crim. Proc. Ann. art. 42.07 (West 2006).
3
Burt v. State, 396 S.W.3d 574, 577 (Tex. Crim. App. 2013).
4
287 S.W.3d 9, 18 (Tex. Crim. App. 2009).
5
Meadoux v. State, 325 S.W.3d 189, 193 n.5 (Tex. Crim. App. 2010), cert.
denied, 131 S. Ct. 1827 (2011); see also Gipson v. State, 383 S.W.3d 152, 159
(Tex. Crim. App. 2012) (relying on quote cited above in reversing case in which
appellate court had not addressed the State’s procedural challenge before
reversing the case on sufficiency grounds).
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our disposition of [this] case” 6 on the merits of Appellant’s issue, “there is no
need for us to address error preservation.” 7
In addressing Eighth Amendment proportionality complaints, “[w]e first
make a threshold comparison of the gravity of the offense against the severity of
the sentence. We are to 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.” 8
Only if we decide that the sentence is disproportionate at this threshold level do
we further compare the sentence to sentences imposed on other criminals in the
same jurisdiction and sentences imposed for the same crime in other
jurisdictions. 9
The statutory range of punishment for the Class A misdemeanor is
confinement for up to 365 days and a fine up to $4000. 10 Given Appellant’s
criminal history and the circumstances of this family violence assault—the
complainant had recently given birth and there was some evidence that the infant
6
Id.
7
Id.
8
Moore v. State, 54 S.W.3d 529, 542 (Tex. App.—Fort Worth 2001, pet.
ref’d) (citing Solem v. Helm, 463 U.S. 277, 291–92, 103 S. Ct. 3001, 3010
(1983); McGruder v. Puckett, 954 F.2d 313, 316 (5th Cir.), cert. denied, 506 U.S.
849 (1992)).
9
Id. at 541.
10
See Tex. Penal Code Ann. §§ 12.43(a), 22.01(a) (West 2011).
4
was in her arms during the assault—we hold that the sentence is not
disproportionate.
We overrule Appellant’s sole issue and affirm the trial court’s judgment.
/s/ Lee Ann Dauphinot
LEE ANN DAUPHINOT
JUSTICE
PANEL: DAUPHINOT, WALKER, and MCCOY, JJ.
WALKER, J., filed a concurring opinion in which MCCOY, J., joins.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: April 24, 2014
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