Ephrain v. State

Full title: TAURUS EPHRAIN, Appellant v. THE STATE OF TEXAS, Appellee

Court: Court of Appeals of Texas, Fifth District, Dallas

Date published: Oct 4, 2007

No. 05-06-01396-CR (Tex. App. Oct. 4, 2007)

Opinion

No. 05-06-01396-CR

Opinion issued October 4, 2007. DO NOT PUBLISH. Tex. R. App. P. 47

On Appeal from the 195th Judicial District Court Dallas County, Texas, Trial Court Cause No. F02-74044-PN.

Before Chief Justice THOMAS and Justices MOSELEY and LAGARDE.¹

1 The Honorable Sue Lagarde, Justice, Court of Appeals, Fifth District of Texas at Dallas, Retired, sitting by assignment.

OPINION

SUE LAGARDE, Justice, Assigned.

Appellant Taurus Ephraim² was indicted for murder in 2002. Tex. Pen. Code Ann. § 19.02(b) (Vernon 2003). In May of 2003 appellant pleaded guilty before the trial court to the charged offense. He was placed on eight years' deferred adjudication community supervision and assessed a $2500 fine. The State later filed a motion to adjudicate appellant's guilt alleging various violations enumerated (a) through (q). Appellant pleaded not true to the allegations in the motion to adjudicate. Following a hearing, the trial court adjudicated appellant's guilt and assessed his punishment at 99 years' imprisonment.³ Appellant now appeals contending his 99-year sentence is grossly disproportionate to the crime and inappropriate to the offender in violation of his constitutional rights under the Eighth and Fourteenth Amendments to the United States Constitution and article 1, section 13 of the Texas Constitution. For reasons that follow, we affirm.

2 At the adjudication hearing appellant indicated his true name was "Ephraim."

3 The adjudication was based on a violation of allegation (a), the commission of a new offense. The trial court did not find allegations (h), (j), (k), (m), or (q) true for lack of evidence to show ability to pay the fees.

Factual Background ⁴

4 In reciting the facts, we borrow generously from appellant's brief.

In November of 2002 three gunmen opened fire on a house with a shotgun, a pistol and an automatic weapon. There were between twelve and fourteen people inside the house. One man was killed. Appellant became a suspect when he bragged to his girlfriend about the offense, and her father took her to the police station to give a statement. Following his plea of guilty before the trial court, appellant was placed on deferred adjudication community supervision for eight years and assessed a $1500 fine. However, appellant was noncompliant with the terms and conditions of his probation in various ways: he did not maintain employment; he became delinquent on court costs, fines, probation fees, urinalysis costs and electronic monitoring fees; and he performed only 50 of the 240 hours of community service required. Appellant acknowledges in his brief he made no effort to comply with the terms of his community supervision. Appellant was also convicted of two misdemeanor offenses while on community supervision: failure to identify and criminal trespass. While on community supervision, appellant lived with April Byrd and her one-year-old son, Xzavion, in Earline Miller's apartment. On June 18, 2005, April took Xzavion to the emergency room at Children's Medical Center. There he was examined by a doctor who discovered various and serious injuries to Xzavion, including injuries to his eyes, lungs, abdomen, penis, scrotum, anus, lower back and buttocks area, feet, spine, and mid-back. The vast majority of Xzavion's injuries were recent and probably occurred the previous day. His feet and anus injuries occurred several weeks earlier. The back injury resulted from significant blunt force trauma. Hemorrhage in Xzavion's eyes indicated strangulation or forceful compression of the chest resulting in a dramatic rise in blood pressure in the vessels in the head. In short, Xzavion's injuries were consistent with a severely physically abused or battered child. The injuries would have been readily apparent to a caretaker — especially with the physical symptoms of pain and crying — and a caretaker would have been duty bound to seek medical attention. Byrd testified that when she returned home from a job interview, Xzavion's eyes were bloodshot. Appellant, who had been keeping the child, said Xzavion had been crying so hard his eyes "popped." Xzavion's body was bloated. When Byrd asked appellant about Xzavion appearing to be unconscious, he said she was "tripping" (imagining it). Appellant prevented Byrd from taking Xzavion to the hospital; however, while appellant slept on Saturday morning, Byrd sneaked out and took Xzavion to the hospital. Byrd also testified about an incident when appellant picked up Xzavion, held a knife over his stomach and said he was going to kill him. Byrd denied injuring Xzavion; however, she admitted being home with him during June. Byrd denied making up these allegations against appellant because she was mad at him for sleeping with her aunt. Miller's child had been removed from the home and was in the care of CPS. A Child Protective Services (CPS) supervisor, Carla Brown, was in the Miller home the day before Xzavion was hospitalized. Brown was trying to get appellant, Byrd, and Xzavion out of the house because Miller could not be around other children. Brown saw Byrd pick up Xzavion who did not cry. She also observed Xzavion's bloodshot eyes and recommended Byrd seek medical attention for him. Appellant testified he is a high school graduate. Concerning the 2002 murder, appellant testified Kathy and Jennifer Green threatened him and his family if he did not shoot at the house of Kevin Law, the deceased. Jennifer had dated Kevin and her new boyfriend wanted her to shoot up the house so he could get the "drug money." No drug money was found, however, Appellant denied the tear drop tattoo under his left eye was a sign of the number of murders he had committed. Appellant testified that type tattoo is under the right eye. Notes from a custodial interview of appellant indicate he stated Byrd tripped over Xzavion, stepped on him and then fell on top of him. Appelant also said that when Byrd was bathing Xzavion, he fell face down in the tub. Based on the above facts, the trial court sentenced appellant to 99 years' imprisonment.

Appeal

Appellant now claims on appeal his sentence is grossly disproportionate to the crime. He contends the facts do not support a prison sentence of 99 years but are more in line with the prosecutor's recommendation of forty or fifty years' confinement. To preserve error 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); Jackson v. State, 989 S.W.2d 842, 843 (Tex.App.-Texarkana 1999, no pet.) (citing Rhoades v. State, 934 S.W.2d 113, 119 (Tex.Crim.App. 1996)). A number of cases finding waiver have dealt specifically with appellate claims that the punishment assessed by the trial court is grossly disproportionate to the offenses, thereby constituting cruel and unusual punishment in violation of the Eighth Amendment of the United States Constitution and/or article I, section 13 of the Texas Constitution. Jackson, 898 S.W.2d at 844 (citing various authorities). Unlike Jackson, here appellant does not claim to have preserved error. Cf. Jackson, 989 S.W.2d at 844 (claiming preservation under rule 33.1(a)(1)(A) when "trial counsel argued strenuously for probation and treatment as opposed to any term of imprisonment"). We quote from the record in this case: THE COURT: Mr. Ephraim, you heard the testimony. When you first started, it was 1:00 o'clock in the morning. There were 12 people in that house, two of them being children.

I heard you testify that because someone that you barely knew threatened your family, you stood out in the street, fired a shotgun at someone's house you didn't know at least six or seven times, resulting in the death of an individual inside that home that you didn't even know.

I don't see how anybody could have any more of a disregard for human life than you showed on that night. Have a guy that was in there cooking noodles at 1:00 o'clock in the morning that died in his mother's arms. His mother certainly didn't deserve to have her son up in her presence and die in her arms.

Had two children in there that just as easily could have been shot up. I don't care if everybody except the two children were drug dealers, including mom. You put those two kids in danger. You did kill one.

And now you want me to forgive you and let you go so you can take care of your daughter. I'm not going to do it.

I'm setting punishment — first, I have found you guilty of murder and I'm setting punishment at 99 years in the Texas Department of Criminal Justice.

Counselor, do you know of any reason in law to stop me from sentencing your client at this time?

[Defense counsel]: No, Your Honor. [emphasis supplied].

Although appellant filed a motion for new trial, that motion did not raise an excessive punishment issue. Because appellant did not raise, in any form, the complaint which he now makes on appeal, error is not preserved. See Rhoades, 934 S.W.2d at 120-121 (holding Rhoades' failure to timely object in the trial court waived error); see also Castaneda v. State, 135 S.W.3d 719, 723 (Tex.App.-Dallas 2003, no pet.) (holding Castaneda failed to preserve error by not objecting at sentencing to his claimed excessive punishment). No error having been preserved, nothing is presented for our review. Consequently, we affirm.