Opinion
NO. 01-18-00928-CR
06-04-2019
HUNTER GAGE CARVER, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 187th District Court Bexar County, Texas
Trial Court Case No. 2015-CR-3272
Pursuant to the Texas Supreme Court's docket equalization powers, this appeal was transferred from the Fourth Court of Appeals to this court on October 19, 2018. See TEX. GOV'T CODE § 73.001; Order Regarding Transfer of Cases From Courts of Appeals, Misc. Docket No. 18-9130 (Tex. Sept. 26, 2018).
MEMORANDUM OPINION
Hunter Gage Carver pleaded guilty to aggravated assault with a deadly weapon. The trial court deferred adjudication of his guilt and placed him on community supervision. Carver violated the terms of his supervision and the trial court assessed his punishment at the statutory maximum of 20 years' incarceration. Carver appeals, contending that his punishment violates the Eighth Amendment to the United States Constitution because it is disproportionate to the offense.
Because Carver did not preserve this issue for appellate review and has not stated a cognizable Eighth Amendment claim in any event, we affirm.
BACKGROUND
A grand jury indicted Carver for aggravated assault with a deadly weapon. See TEX. PENAL CODE § 22.02(a)(2).
Carver applied for deferred adjudication or community supervision in the event that he pleaded guilty or was convicted. In Carver's application, he acknowledged that if the trial court deferred adjudication of his guilt and he violated the terms of his supervised release, he would receive a hearing limited to determination by the trial court as to whether to proceed with adjudication of guilt on the aggravated assault charge and that, if found guilty, punishment would be assessed as if the adjudication of his guilt had not been deferred.
Carver pleaded guilty, admitting under oath that he used a BB gun in a manner capable of causing death or serious bodily injury and did bodily injure the complainant. As part of his plea bargain, the State agreed not to make a recommendation on his application for deferred adjudication.
The trial court deferred adjudication of Carver's guilt and placed him on community supervision for 10 years. One of the terms of Carver's supervision was that he abstain from the use of illegal drugs and alcohol.
Carver used marijuana twice, and the State moved to adjudicate his guilt and revoke his community supervision. The trial court instead ordered Carver to participate in a residential treatment program.
After completing the program, Carver tested positive for marijuana use on three more occasions. The trial court amended the terms of Carver's supervision to require him to spend six weekends in county jail.
Carver violated the terms of his supervision again by using marijuana, failing to submit to a drug test, and giving diluted samples several times. The State moved to adjudicate his guilt and revoke his community supervision. Carver pleaded true to the preceding violations.
The trial court adjudicated Carver's guilt on the original charge of aggravated assault with a deadly weapon and assessed his punishment at 20 years' confinement, which is the statutory maximum period of incarceration. See TEX. PENAL CODE §§ 12.33(a), 22.02(b).
DISCUSSION
Carver contends that the trial court imposed an excessive punishment in violation of his Eighth Amendment rights. The State responds that Carver waived this issue by not objecting to his punishment on this basis in the trial court.
We agree with the State that Carver did not preserve this contention for our review. Carver did not assert that his punishment was excessive in violation of the Eighth Amendment when the trial court imposed it, in a motion for new trial, or at any other time in the trial court. The Court of Criminal Appeals has held that defendants may not assert an Eighth Amendment claim for the first time on appeal. E.g., Burt v. State, 396 S.W.3d 574, 577 (Tex. Crim. App. 2013) (citing with approval Russell v. State, 341 S.W.3d 526 (Tex. App.—Fort Worth 2011, no pet.), which held that defendant did not preserve Eighth Amendment complaint not raised at sentencing); Lucero v. State, 246 S.W.3d 86, 98 (Tex. Crim. App. 2008) (holding that defendant did not raise Eighth Amendment claim in trial court and therefore did not preserve it for appellate review).
Carver cites a law review article for the proposition that Eighth Amendment complaints cannot be waived. See Jeffrey L. Kirchmeier, Let's Make a Deal: Waiving the Eighth Amendment by Selecting a Cruel & Unusual Punishment, 32 CONN. L. REV. 615 (2000). As an intermediate appellate court, we are bound by the decisions of the Court of Criminal Appeals. Garcia v. State, 486 S.W.3d 602, 608 (Tex. App.—San Antonio 2015, pet. ref'd). But even if we were writing on a blank slate, Kirchmeier's article focuses on whether a defendant may waive an Eighth Amendment violation by electing a cruel and unusual punishment as part of a plea bargain, not whether a defendant may do so through procedural default. See Kirchmeier, supra, at 617. The article thus does not support Carver's position.
Moreover, even if Carver had preserved this issue for review, he does not state a valid Eighth Amendment claim. He contends that the disparity between the violation of his supervised-release terms, which he characterizes as "minor substance abuse," and his punishment of 20 years' incarceration is so severe that it is cruel and unusual. But an Eighth Amendment proportionality analysis focuses on whether a punishment is excessive in relation to the crime for which the defendant was convicted. See Krumboltz v. State, 945 S.W.2d 176, 177 (Tex. App.—San Antonio 1997, no pet.). We would not consider the grounds supporting the trial court's revocation of Carver's deferred adjudication community supervision in deciding whether his punishment was unconstitutionally excessive. Lawrence v. State, 420 S.W.3d 329, 333 (Tex. App.—Fort Worth 2014, pet. ref'd); Atchison v. State, 124 S.W.3d 755, 760 (Tex. App.—Austin 2003, pet. ref'd); Nunez v. State, 110 S.W.3d 681, 682 (Tex. App.—Corpus Christi 2003, no pet.); Sullivan v. State, 975 S.W.2d 755, 756 (Tex. App.—Corpus Christi 1998, no pet.). Carver therefore has not stated a cognizable Eighth Amendment claim.
Finally, Carver also argues that the trial court's "revocation based solely on technical violations of his probation is grossly out of proportion to the severity of the crime." We reject the notion that Carver's failure to abide by the terms of his supervision relating to illegal drug use is a technicality. More significantly, however, "a defendant on deferred adjudication community supervision may not appeal from the trial court's determination to proceed with an adjudication of guilt on the original charge." Hargesheimer v. State, 182 S.W.3d 906, 909 (Tex. Crim. App. 2006). We therefore cannot address Carver's complaint as to the trial court's revocation decision.
CONCLUSION
We affirm the judgment of the trial court.
Gordon Goodman
Justice Panel consists of Chief Justice Radack and Justices Goodman and Countiss. Do not publish. TEX. R. APP. P. 47.2(b).