From Casetext: Smarter Legal Research

Appleby v. State

Court of Appeals Fifth District of Texas at Dallas
Nov 30, 2017
No. 05-17-00474-CR (Tex. App. Nov. 30, 2017)

Opinion

No. 05-17-00474-CR

11-30-2017

JEFFREY CHASE APPLEBY, Appellant v. THE STATE OF TEXAS, Appellee


On Appeal from the Criminal District Court No. 5 Dallas County, Texas
Trial Court Cause No. F15-75933-L

MEMORANDUM OPINION

Before Justices Lang-Miers, Fillmore, and Stoddart
Opinion by Justice Fillmore

Jeffrey Chase Appleby appeals his conviction for aggravated assault involving family violence and causing serious bodily injury with a deadly weapon. The trial court assessed punishment at twenty-five years' imprisonment. In a single issue, appellant contends the sentence constitutes cruel and unusual punishment. We affirm the trial court's judgment.

Appellant waived a jury and pleaded guilty to aggravated assault involving family violence and causing serious bodily injury with a deadly weapon, a motor vehicle. See TEX. PENAL CODE ANN. § 22.02(a) (West 2011); TEX. FAM. CODE ANN. §§ 71.0021, 71.005 (West 2014 & Supp. 2016). The trial court deferred adjudication of guilt and placed appellant on ten years' community supervision. The State later moved to adjudicate guilt, alleging appellant violated several conditions of his community supervision. After appellant pleaded true to the allegations in a hearing on the motion, the trial court found the allegations true, adjudicated appellant guilty, and sentenced him to twenty-five years' imprisonment.

The trial court's order of deferred adjudication filed in the clerk's record recites five years' community supervision. However, the reporter's record of the plea hearing shows the trial court orally pronounced a ten-year community supervision period.

On appeal, appellant admits the twenty-five-year sentence falls within the statutory punishment range allowed for the offense. Nevertheless, he argues that a twenty-five year sentence is extreme and grossly disproportionate to the offense because (1) he was under the influence of drugs when he used a motor vehicle to run over the complainant, Petrina Tate, and (2) Tate asked the trial court to sentence appellant to drug treatment rather than incarceration.

To preserve error for appellate review, the record must show appellant made a timely request, objection, or motion. See TEX. R. APP. P. 33.1(a)(1). Although appellant did not object to the sentence at the time it was imposed, he did file a letter with this Court five days after the sentence was imposed asking for reconsideration of his sentence. We will treat appellant's letter as a motion for new trial and conclude he has preserved this issue for appellate review.

The sentence was imposed on April 26, 2017, and appellant filed his letter with this Court on May 1, 2017. We forwarded the letter to the trial court, which file-stamped it on May 8, 2017.

The basic concept of proportionality is embodied in the Eighth Amendment's proscription against cruel and unusual punishment. U.S. CONST. amend. VIII ; State v. Simpson, 488 S.W.3d 318, 322 (Tex. Crim. App. 2016). This, however, is a "narrow principle" that does not compel any arithmetic proportionality between the crime and the sentence imposed. Simpson, 488 S.W.3d at 322 (citing Harmelin v. Michigan, 501 U.S. 957, 1001 (1991) (Kennedy, J., concurring)). Instead, it forbids only those extreme sentences that are so "grossly disproportionate" to the crime as to amount to cruel and unusual punishment. Id. A sentence is grossly disproportionate to the crime "only in the exceedingly rare or extreme case." Id. at 322-23.

The Eighth Amendment is applicable to the States by virtue of the Fourteenth Amendment. U.S. CONST. amend. XIV; Harmelin v. Michigan, 501 U.S. 957, 962 (1991).

To the extent appellant argues he is entitled to rely upon protections against cruel and unusual punishment afforded by article I, section 13 of the Texas Constitution, the Court of Criminal Appeals has held there is no significant difference in the protections afforded by these constitutional provisions. Cantu v. State, 939 S.W.2d 627, 645 (Tex. Crim. App. 1997).

As a general rule, a punishment within statutory limits will not be excessive, cruel, or unusual. Id. at 323. To determine whether a particular sentence is "grossly disproportionate," we first consider the severity of the sentence in light of the harm caused or threatened to the victim or victims, the culpability of the offender, and the offender's prior misconduct. Id. In the rare case in which this threshold comparison leads to an inference of gross disproportionality, we then compare the defendant's sentence with the sentences of other, similarly situated offenders in Texas and with the sentences imposed for the same or analogous crime in other jurisdictions. Id. If this comparative analysis validates an initial judgment that the sentence is grossly disproportionate, the sentence is cruel and unusual. Id.

Here, the record shows that, at the time of the assault, appellant and Tate had an off-and-on relationship spanning nine years. Together, they had a daughter. On the day of the assault, appellant, Tate, and their daughter were staying at a hotel. Appellant left with Tate's car, making Tate suspect that he had gone to find drugs; Tate testified that appellant's drugs of choice were cocaine and methamphetamine, and that he consumed alcohol.

Tate used the car's GPS to locate it at a nearby gas station and went to retrieve the car. When she got to the gas station, appellant saw her and ran to the driver's side of the car. He got in and started the car. At the same time, Tate opened the passenger side door and tried to get in the vehicle. She was pulled under the vehicle when appellant put the car in drive. Appellant ran over Tate who suffered six broken ribs, a collapsed lung, significant bruising, and a hematoma to the scalp. Appellant then fled the scene. Tate's injuries required her to remain in the hospital for three days.

Although the trial court deferred adjudication of guilt, appellant violated numerous conditions of his deferred adjudication, including using drugs and alcohol, failing to pay court costs and fines, and failing to participate in a drug/alcohol treatment plan as ordered. As a result, the State moved to proceed to adjudicate. At the time of appellant's adjudication hearing, Tate was pregnant with their second child. She testified appellant was a good father to their seven-year-old daughter and that he needed structure and drug treatment. Tate said she believed in the system but that sending him to prison was "just tak[ing] a bed for somebody else that really needs it." At the hearing, appellant admitted he had been in state jail before and that he had a "criminal history that's eight pages long."

After reviewing the record in this case and considering the physical and emotional harm caused to Tate, appellant's culpability, and his other prior misconduct, we cannot conclude appellant's sentence supports an inference of gross disproportionality. Assault involving family violence and causing serious bodily injury with a deadly weapon is a first-degree felony offense punishable by imprisonment for life or a term from five to ninety-nine years and an optional fine not to exceed $10,000. See TEX. PENAL CODE ANN. §§ 12.32, 22.02(b)(1) (West 2011). Appellant's twenty-five-year sentence is within the statutory punishment range for this offense. We overrule appellant's sole issue on appeal.

We affirm the trial court's judgment adjudicating guilt.

/Robert M. Fillmore/

ROBERT M. FILLMORE

JUSTICE Do Not Publish
TEX. R. APP. P. 47 170474F.U05

JUDGMENT

On Appeal from the Criminal District Court No. 5, Dallas County, Texas
Trial Court Cause No. F15-75933-L.
Opinion delivered by Justice Fillmore. Justices Lang-Miers and Stoddart participating.

Based on the Court's opinion of this date, the judgment adjudicating guilt of the trial court is AFFIRMED. Judgment entered this 30th day of November, 2017.


Summaries of

Appleby v. State

Court of Appeals Fifth District of Texas at Dallas
Nov 30, 2017
No. 05-17-00474-CR (Tex. App. Nov. 30, 2017)
Case details for

Appleby v. State

Case Details

Full title:JEFFREY CHASE APPLEBY, Appellant v. THE STATE OF TEXAS, Appellee

Court:Court of Appeals Fifth District of Texas at Dallas

Date published: Nov 30, 2017

Citations

No. 05-17-00474-CR (Tex. App. Nov. 30, 2017)