Opinion
02-24-00001-CR 02-24-00002-CR02-24-00003-CR 02-24-00004-CR
08-29-2024
Bryce Keith Abernathy, Appellant v. The State of Texas
Do Not Publish Tex.R.App.P. 47.2(b)
On Appeal from the 396th District Court Tarrant County, Texas Trial Court Nos. 1724279, 1724283, 1724284, 1727702
Before Sudderth, C.J.; Kerr and Womack, JJ.
MEMORANDUM OPINION
DANA WOMACK JUSTICE
I. Introduction
Appellant Bryce Keith Abernathy appeals his sentence of eight years' incarceration for manslaughter, a second-degree felony. See Tex. Penal Code Ann. § 19.04. In three points, Abernathy asserts that his sentence is grossly disproportionate to his offense and that the trial court abused its discretion by refusing his request for community supervision and by admitting speculative testimony about the extent of his involvement with street racing. We will affirm.
II. Background
In March 2022, Abernathy drove his Camaro to a Fort Worth restaurant to meet his mother, his roommate Zach Johnson, and Johnson's date Hailey Burns for dinner. After dinner, Abernathy, Johnson, and Burns decided to head back to Abernathy and Johnson's Arlington residence. Because Burns was interested in Abernathy's Camaro, which "was fast and had stuff done to it," Johnson encouraged her to ride with Abernathy, and she did so.
While traveling eastbound on I-20, Abernathy, who wanted to show off his car, floored the gas pedal and accelerated up to 157 miles per hour-more than double the 70 mile-per-hour speed limit. Witnesses "who were traveling eastbound on [I-20] in Lane 3" reported that they had "observed [Abernathy's] white Camaro fly by them on the left." Abernathy appeared to be racing a Ford truck.
At trial, the highway lanes were numbered left to right, with Lane 1 being the far left lane and Lane 4 being the far right lane. For consistency and ease of discussion, we will refer to the lanes in this same manner.
Alynnie Harris was also driving eastbound on I-20 at the time. She had three passengers in her SUV: her sister Baylin Harris, Desmond Armstrong, and Shaundi Smallwood. A witness observed that Alynnie, who had been in Lane 2, changed lanes to the right in an attempt to get out of the way of Abernathy's fast-approaching Camaro. Alynnie's vehicle was straddling Lanes 2 and 3 when Abernathy's Camaro smashed into it.
Because two of the victims share the same surname, we will refer to them using their first name for clarity.
Both vehicles were demolished, and Alynnie's SUV burst into flames. Smallwood, who had been riding in Alynnie's backseat without a seatbelt, was partially ejected through the rear windshield and was pronounced dead at the scene. Alynnie, Baylin, and Armstrong were hospitalized with numerous injuries, including liver and kidney lacerations, broken bones, and burns.
Ultimately, Abernathy was charged with four offenses via four separate indictments: manslaughter of Smallwood, aggravated assault causing serious bodily injury to both Alynnie and Baylin, and aggravated assault of Armstrong with a deadly weapon. See Tex. Penal Code Ann. §§ 19.04(a), 22.02(a). He pleaded guilty to all four offenses without the benefit of a plea bargain. After accepting Abernathy's guilty pleas, the trial court ordered the preparation of a presentence investigation report (PSI). Following a punishment hearing, the trial court sentenced Abernathy to eight years' incarceration for the manslaughter offense. The trial court deferred adjudicating Abernathy's guilt on the remaining offenses and placed him on community supervision for ten years. Abernathy moved for a new trial and timely commenced this appeal.
The trial court established separate cause numbers for each of the four counts. Although Abernathy filed a separate notice of appeal in each case, his appellate arguments challenge only the punishment that he received for the manslaughter count. To the extent that Abernathy intended to complain about the punishments that he received for the remaining counts, he has forfeited any such complaints due to inadequate briefing. See Tex. R. App. P. 38.1(i); Lucio v. State, 351 S.W.3d 878, 896 (Tex. Crim. App. 2011).
This sentence is well within the statutory limits for Abernathy's second-degree felony offense. See Tex. Penal Code Ann. § 12.33 (providing that the punishment range for a second-degree felony is two to twenty years in prison and up to a $10,000 fine).
III. Discussion
A. Abernathy's Eight-Year Sentence for Manslaughter Is Not Unconstitutional
In his first point, Abernathy argues that his eight-year sentence for manslaughter-despite being well within the statutory limits-is grossly disproportionate to his offense and is therefore unconstitutional. We disagree.
1. Applicable Law
"Generally, punishment assessed within the statutory limits is not excessive, cruel, or unusual punishment." Dale v. State, 170 S.W.3d 797, 799 (Tex App-Fort Worth 2005, no pet) (first citing Jordan v State, 495 S.W.2d 949, 952 (Tex Crim App 1973); and then citing Alvarez v State, 63 S.W.3d 578, 580 (Tex App-Fort Worth 2001, no pet)) Indeed, a trial court has "essentially 'unfettered'" discretion to impose any sentence within the prescribed statutory range, Ex parte Chavez, 213 S.W.3d 320, 323 (Tex Crim App 2006) (quoting Miller-El v State, 782 S.W.2d 892, 895 (Tex Crim App 1990)), and any sentence within the statutory limits is virtually "unassailable" on appeal provided that it is based upon the sentencer's informed normative judgment, Id. at 324 But a narrow exception to this general rule exists: the Eighth Amendment prohibits noncapital punishment within the statutory limits if the sentence is grossly disproportionate to the offense Graham v Florida, 560 U.S. 48, 59- 60, 130 S.Ct. 2011, 2021-22 (2010); Harmelin v Michigan, 501 U.S. 957, 997-1001, 111 S.Ct. 2680, 2702-05 (1991) (Kennedy, J, concurring in part and concurring in judgment); State v Simpson, 488 S.W.3d 318, 322 (Tex Crim App 2016) Although the "precise contours [of the gross-disproportionality exception] are unclear," Harmelin, 501 U.S. at 998-1001, 111 S.Ct. at 2703-05 (Kennedy, J, concurring in part and concurring in judgment), one thing is certain: it applies "only in the exceedingly rare or extreme case," Simpson, 488 S.W.3d at 322-23; see also Chavez, 213 S.W.3d at 323-24.
To determine whether a noncapital sentence qualifies for this uncommon and "somewhat amorphous" exception, we engage in a three-step review beginning with a threshold analysis comparing the gravity of the offense to the severity of the sentence. Graham, 560 U.S. at 60, 130 S.Ct. at 2022; Simpson, 488 S.W.3d at 323; see also Chavez, 213 S.W.3d at 323-24. Assessing the gravity of the offense requires us to consider (1) the harm that the defendant caused or threatened to the victim and to society, (2)the defendant's culpability, and (3) the defendant's prior adjudicated and unadjudicated crimes. See Simpson, 488 S.W.3d at 323. We weigh these factors against the defendant's sentence, looking to precedent for guidance as to the constitutional limits of proportional severity. See Hutto v. Davis, 454 U.S. 370, 374-75, 102 S.Ct. 703, 706 (1982) (per curiam) (chastising lower courts for extending gross-disproportionality exception beyond the limits of precedent); McGruder v. Puckett, 954 F.2d 313, 317 (5th Cir. 1992) (holding sentence was not grossly disproportionate based on Supreme Court and Fifth Circuit precedent). In the rare case in which this threshold analysis indicates gross disproportionality, we proceed to steps two and three by comparing the defendant's sentence with those received by similar offenders in this jurisdiction and with those imposed for the same crime in other jurisdictions. Simpson, 488 S.W.3d at 323; see also Solem v. Helm, 463 U.S. 277, 296-300, 103 S.Ct. 3001, 3012-15 (1983) (applying steps two and three).
2. Application
Abernathy's gross-disproportionality argument does not pass the threshold test. Rather, considering the factors set forth above, see Simpson, 488 S.W.3d at 323, we conclude that his eight-year sentence for manslaughter is well within constitutional bounds.
First, Abernathy caused significant harm. The record shows that he had been driving at an extremely high, unsafe speed when his Camaro collided with Alynnie's SUV. This unsafe driving endangered all surrounding drivers and passengers, actually killing one of them-Smallwood-while causing significant injuries to at least three others. Cf. Jackson v. State, No. 02-23-00156-CR, 2023 WL 8267693, at *2 (Tex. App.-Fort Worth Nov. 30, 2023, no pet.) (mem. op., not designated for publication) (applying threshold gross-disproportionality test and holding that appellant had caused significant harm by, inter alia, "fleeing from police in [a] stolen vehicle and ultimately wrecking it," thereby "plac[ing] . . . other motorists in danger"). Smallwood's mother testified that her son's death has significantly impacted her mental health, causing her to have suicidal thoughts, panic attacks, and extreme fear. She also testified that her daughter suffers from post-traumatic stress and night terrors and that her son has been unable to "handle" or "deal with" Smallwood's death.
Second, Abernathy's moral culpability-his blameworthiness for the offense- was high. See Bolar v. State, 625 S.W.3d 659, 666 (Tex. App.-Fort Worth 2021, no pet.). "In analyzing a defendant's culpability, we consider factors such as the defendant's age at the time of the offense, his motive and intent to commit the crime, his role as the primary actor or as a party to the offense, and his acceptance of responsibility." Id. The record shows that Abernathy-who was the sole actor and a twenty-two-year-old man at the time of the offense-demonstrated a lack of concern for others' safety by consciously choosing to drive at an extremely high speed on a major highway. Although Abernathy expressed remorse and ultimately accepted responsibility by pleading guilty to all four counts, the record reflects that immediately after the collision, he attempted to minimize his culpability by falsely blaming Alynnie for the accident, telling investigators that he had been traveling only 75 miles per hour when Alynnie suddenly changed lanes and slammed on her brakes. He continued his attempt to minimize his culpability during sentencing by maintaining that his lane of travel had been clear until he suddenly saw brake lights in front of him.
One of the investigators testified at trial that when he asked Abernathy to describe what had happened, he had told him that he had been traveling about 75 miles per hour when a vehicle suddenly swerved in front of him and slowed down. According to Abernathy, he told the investigators that he did not know how fast he had been going, and when one of them began "throwing [out] numbers," he had just "agreed with one of them."
Although the record contains some evidence supporting Abernathy's account, it also contains substantial contradictory evidence, including (1) an eyewitness's observation that Alynnie had changed lanes in an apparent attempt "to get out of the way of the Camaro coming up behind 'her'"; (2) the data from the Camaro's airbag control module (ACM) showing that Abernathy had been driving 157 miles per hour shortly before the crash; and (3) the data from Alynnie's vehicle's ACM showing that it had been in a constant state of deceleration for five seconds prior to the collision, meaning that Alynnie had not suddenly slammed on her brakes as Abernathy claimed.
Third, although Abernathy does not have a prior criminal history, the manslaughter charge upon which his challenged prison sentence is based was not the only violent offense associated with this incident. As noted, Abernathy was also charged with two counts of aggravated assault causing serious bodily injury and one count of aggravated assault with a deadly weapon. Thus, this factor lessens his offense's gravity only slightly, if at all.
Taking all of these factors together and affording proper deference to the legislature and the trial court to create and assess Abernathy's punishment, we cannot say that his eight-year sentence, which is well within the statutory range for his manslaughter offense, gives rise to an inference of disproportionality. Accordingly, we overrule Abernathy's first point.
See supra note 3.
Because Abernathy's disproportionality argument does not pass the threshold test, we need not compare his sentences to others for the same offenses in Texas and elsewhere. See Bolar, 625 S.W.3d at 666; see also Nunnally v. State, No. 03-19-00807-CR, 2021 WL 4995502, at *5 (Tex. App.-Austin Oct. 28, 2021, no pet.) (mem. op., not designated for publication).
B. The Denial of Abernathy's Probation Request Is Not Appealable
In his second point, Abernathy contends that the trial court abused its discretion by denying his request to be placed on probation for his manslaughter conviction and instead sentencing him to prison time. "However, when the trial is before the court and a motion for probation is filed, the trial judge has the absolute and unreviewable discretion either to refuse or to grant probation." Lopez v. State, 556 S.W.2d 821, 823 (Tex. Crim. App. 1977); see also Nelson v. State, 573 S.W.2d 9, 12 (Tex. Crim. App. 1978) ("[T]he law is settled that the decision of whether or not to grant probation is absolutely within the discretion of the trial judge and that the decision not to grant probation is not appealable."); Acostavilla v. State, No. 02-18-00182-CR, 2019 WL 2432154, at *3 (Tex. App.-Fort Worth June 6, 2019, no pet.) (mem. op., not designated for publication) (rejecting appellant's argument that the trial court had reversibly erred by not placing him on probation because it was a "non-appealable issue"). Because the trial court's denial of Abernathy's probation request is not appealable, we overrule his second point.
C. The Trial Court Did Not Reversibly Err by Admitting Speculative Testimony About the Extent of Abernathy's Involvement in Street Racing In his third point, Abernathy contends that the trial court abused its discretion by overruling his "speculation" objections to Detective Clay Collins's testimony regarding the extent of Abernathy's involvement in street racing. But even assuming-without deciding-that the trial court erred by admitting this testimony, such error was harmless.
1. Standard of Review
We review a trial court's decision to admit or exclude evidence under an abuse-of-discretion standard. Zuliani v. State, 97 S.W.3d 589, 595 (Tex. Crim. App. 2003); Montgomery v. State, 810 S.W.2d 372, 379 (Tex. Crim. App. 1990). Thus, we will not reverse such a decision unless the record shows a clear abuse of discretion. Zuliani, 97 S.W.3d at 595. An abuse of discretion occurs only when the trial court's decision was so clearly wrong as to lie outside that zone within which reasonable persons might disagree. Id.
Even if a trial court improperly admits evidence, such an error generally does not warrant reversal unless it affects an appellant's substantial rights. See Tex. R. App. P. 44.2(b). "A substantial right is affected when the error had a substantial and injurious effect or influence in determining the jury's verdict." Coble v. State, 330 S.W.3d 253, 280 (Tex. Crim. App. 2010). Improperly admitted evidence that did not influence the jury or had but a slight effect on the verdict is harmless. Id. Further, a trial court's error in improperly admitting evidence may be rendered harmless if other evidence that proves the same facts as the inadmissible evidence is admitted without objection. See Valle v. State, 109 S.W.3d 500, 509-10 (Tex. Crim. App. 2003); see also Williams v. State, 172 S.W.3d 730, 734 (Tex. App.-Fort Worth, 2005) (holding error in admitting evidence was harmless because the same facts were included in the PSI, which the trial court had considered without objection).
2. Application
Here, Abernathy complains about the admission of Detective Collins's testimony regarding the extent of Abernathy's involvement in street racing. During the State's case-in-chief, it offered into evidence certain videos depicting Abernathy engaging in street racing that had been found on his cellphone and Instagram account. The prosecutor asked Detective Collins whether it would be more dangerous if these videos had been made in a period spanning three years as opposed to a shorter time frame. After the trial court overruled Abernathy's "speculation" objection, Detective Collins testified that, "In my opinion[,] it shows more of a constant action. If it's a one-time thing, there's one video. If there's numerous videos, it shows that it was an action that [Abernathy] partook in numerous times." Later, the prosecutor asked whether the sticker on Abernathy's car displaying the handle to Abernathy's Instagram account where he had posted numerous street-racing videos indicated that street racing "was a big part of [Abernathy's] life." After the trial court overruled Abernathy's objection that this question called for speculation, Detective Collins affirmed that it did.
Even if the trial court erred by admitting Detective Collins's complained-of testimony, such error was harmless. The record contains a myriad of other evidence showing that (1) Abernathy had a pattern of street-racing behavior and (2) street racing was a major part of his life. For example,
• Abernathy testified that he had made extensive modifications to his Camaro to make it a better race car, including changing "the engine, the driveshaft, the wheels, . . . pretty much the whole car";
• Abernathy, who was making $18.50 per hour at the time of the crash, estimated that he had invested approximately $100,000 in his Camaro;
• Abernathy testified that at one time, approximately eighty to eighty-five percent of the content that he viewed on Instagram was street-racing videos;
• Abernathy created a street-racing club with his friends, and this club had its own YouTube channel, which Abernathy ran;
• Abernathy continued to street race even after one of his friends was arrested for street racing with Abernathy riding shotgun;
• Abernathy had an Instagram page that was open to the public and displayed videos of his street racing, and he advertised his Instagram page on his Camaro;
• The PSI reflects that although Abernathy claimed that he had stopped racing before the night of the crash, he acknowledged participating in racing two to three times per month over a two-year period;
• Despite Abernathy's claim that he had quit racing before the night of the crash, he testified on cross-examination that he had only "slowed down on [his] racing" because "it was getting expensive"; and
• Abernathy testified that although he "did care" about putting others' lives in danger, he did not care enough to stop racing.
Given the copious evidence of Abernathy's pattern of street-racing behavior and the large role that street racing played in his life, we cannot conclude that the complained-of testimony substantially impacted the trial court's sentencing decision or otherwise affected Abernathy's substantial rights. See Tex. R. App. P. 44.2(b); Coble, 330 S.W.3d at 280; see also Valle, 109 S.W.3d at 509-10. Accordingly, we overrule Abernathy's third point.
IV. Conclusion
Having overruled all of Abernathy's points, we affirm the trial court's judgment and orders of deferred adjudication.