Opinion
No. 05-11-00514-CR
08-16-2012
WILLIAM SCOTT GARRISON, Appellant v. THE STATE OF TEXAS, Appellee
AFFIRM;
On Appeal from the 15th Judicial District Court
Grayson County, Texas
Trial Court Cause No. 060031
MEMORANDUM OPINION
Before Justices Bridges, Francis, and Lang
Opinion By Justice Lang
William Scott Garrison appeals his sixty year enhanced sentence for the third-degree felony offense of retaliation. See Tex. Penal Code Ann. § 36.06(a)(1)(a) (West 2011). In two issues, Garrison asserts (1) the sentence is excessive and grossly disproportionate to the crime in violation of the Eighth Amendment's prohibition against cruel and unusual punishment and (2) his trial counsel was ineffective in failing to object to the excessive sentence. We decide against Garrison on both issues and affirm the trial court's judgment. Because all issues are clearly settled in law, we issue this memorandum opinion. See Tex. R. App. P. 47.2(a), 47.4. I. Background
Garrison was charged by indictment that alleged he threatened to murder or assault Grayson County District Attorney Joseph D. Brown in retaliation for Brown's successful prosecution of certain convicted felons. See Tex. Penal Code Ann. § 36.06(a)(1) (West 2011). In seven enhancement paragraphs, the indictment further alleged Garrison had four prior state convictions for the felony offense of retaliation, one prior state conviction for the felony offense of escape while arrested or confined, one prior state conviction for the felony offense of possession of a deadly weapon in a penal institution, and one prior federal conviction for the felony offense of mailing threatening communications.
Garrison waived his right to a jury trial and, pursuant to a plea agreement that capped his punishment at eighty years' imprisonment, pleaded guilty to the charge and true to the enhancement paragraphs. Following testimony at the plea hearing from Garrison, the trial court found sufficient evidence of Garrison's guilt and the prior convictions and reset the case for a presentence investigation report. Garrison subsequently moved to withdraw his waiver of his right to a jury trial for punishment determination only, and the trial court granted Garrison's request.
At the punishment hearing, the prosecutor, seeking "the maximum [sentence]-ninety-nine years," offered into evidence (a) two letters Garrison wrote to Brown, both of which formed the basis for the instant offense; (b) certified copies of Garrison's prior convictions; and, (c) approximately five pounds of records from the Texas Department of Corrections ("TDC"), "at least half" of which consisted of disciplinary records. The prosecutor also elicited testimony from Grayson County Probation Department deputy chief Jason Kirk and Grayson County deputy sheriff Jason Speir.
Kirk testified he completed Garrison's presentence investigation report and, in the process, reviewed the TDC records, documents from the State's file including Garrison's letters to Brown, and a "personal information packet" Garrison completed. He also interviewed Garrison and met with Brown.
Kirk testified Brown took the threats in Garrison's letters "quite seriously." The letters, which were read to the jury, contained vulgar and offensive language, stated Brown was "a dead man" and his "time was coming," and included symbols "indicative of white supremacists, Nazi Germany type." According to Kirk, Garrison had a "history of making the same threats" to people "he has issues with." In addition to threatening Brown, Garrison had threatened a federal judge, a sheriff deputy, his ex-girlfriend and her children, and his daughter's great grandparents.
Kirk testified Garrison had been continuously incarcerated since 1997 and believed he would remain incarcerated through April 2016. Since his incarceration, Garrison had "spen[t ]a lot of [his prison] time in separation" because of his inability to get along with others. Garrison had "a myriad" of disciplinary citations including citations for "trafficking and trading," possessing contraband, refusing to turn out for work, "unauthorized commissary purchasing," threatening a guard, refusing to obey orders, assaulting an officer "by threat," false reporting, threatening to kill a warden, attempting to escape, and engaging in sexual misconduct. Garrison also had a history of drug use and had obtained and used drugs as an inmate. Finding no "mitigating or softening" evidence warranting "some wrist slap punishment," Kirk recommended Garrison "be put away long enough to protect society" and "s[aw] nothing wrong" with the State seeking a ninety-nine-year sentence.
On cross-examination, Kirk acknowledged Garrison had no first or second-degree felony convictions and Garrison's "worse [TDC] charge" was the assault on the officer, an incident other inmates witnessed and thought was precipitated by the officer's treatment of Garrison. Kirk also acknowledged he found no evidence Garrison had taken any steps to carry out any of his threats and no evidence Garrison actually "even knew" Brown or what Brown looked like. Kirk acknowledged further that Garrison's daughter's great grandparents had maintained a relationship with Garrison after he threatened to kill them and even visited Garrison in prison. According to Kirk, Garrison had admitted to many of the offenses and stated to him that he sent Brown the threatening letters in order to be returned to Grayson County to be closer to his ill father.
Speir testified that two weeks earlier, while working in the Grayson County jail, Garrison had threatened him. Although he had since interacted with Garrison and no further incidents had occurred, Speir did not "feel like [Garrison was] harmless." According to Speir, jail officers considered Garrison a "high risk inmate."
Seeking a sentence of "thirty to forty years" and "one more . . . reasonable chance to get out one day," Garrison testified his threats were "empty threats" and he had never planned "to get back at" his victims. Garrison's mother corroborated Garrison's testimony, stating she had not seen Garrison take any steps to act on his threats, did not think he would act on his threats, and thought he could be "a productive member of society." Garrison's mother also testified that, as a child, Garrison had been diagnosed with Tourette's Syndrome, which caused "unusual [verbal] outbursts." The jury assessed a sixty-year sentence, which the trial court ordered be served consecutively to his sentences for the prior retaliation convictions. Garrison did not object to the sentence at the time it was pronounced, but subsequently moved the court to consider ordering "the sixty years or any other lower term" be served concurrently instead of consecutively because of "the hardship and burden" a consecutive sentence would create on his family. Garrison also moved for a new trial arguing the verdict was "contrary to the law and the evidence." The trial court denied both motions.
II. Excessive Punishment
1. Constitutional Prohibition
The Eighth Amendment to the United State Constitution, as applied to the states through the Fourteenth Amendment, prohibits cruel and unusual punishment and requires a criminal sentence to be proportionate to the crime committed. See U.S. Const. amend. VIII; Lackey v. State, 881 S.W.2d 418, 420 (Tex. App.-Dallas 1994, pet. ref'd); see also Graham v. Florida, 130 S. Ct. 2011, 2021 (2010) ("The concept of proportionality is central to the Eighth Amendment."). In determining whether a sentence is extreme or grossly disproportionate to the crime committed, an appellate court compares the gravity of the offense with the harshness of the penalty, judging the offense in light of the harm caused or threatened to the victim and the culpability of the offender. See Solem v. Helm, 463 U.S. 277, 291-92 (1983); Arriaga v. State, 335 S.W.3d 331, 335 (Tex. App.-Houston [14th Dist.] 2010, pet. ref'd). The appellate court also considers the sentence imposed in light of the offender's prior adjudicated and unadjudicated offenses. Culton v. State, 95 S.W.3d 401, 403 (Tex. App.-Houston [1st Dist.] 2002, pet. ref'd). If the appellate court concludes the sentence is grossly disproportionate to the crime, the court next considers the sentences imposed upon other criminals in the same jurisdiction and the sentences imposed for the commission of the same crime in other jurisdictions. Arriaga, 335 S.W.3d at 335. Generally, punishment assessed within the statutory limits, including punishment enhanced pursuant to a habitual offender statute, is not excessive, cruel, or unusual. See Rummel v. Estelle, 445 U.S. 263, 284 (1980) (goals of recidivist statute "are to deter repeat offenders and, at some point in the life of one who repeatedly commits criminal offenses serious enough to be punished as felonies, to segregate that person from the rest of society for an extended period of time."); see also Ex parte Chavez, 213 S.W.3d 320, 323 (Tex. Crim. App. 2006); Kirk v. State, 949 S.W.2d 769, 772 (Tex. App.-Dallas 1997, pet. ref'd); Lackey, 881 S.W.2d at 420. 2. Statutory Limit
The statutory punishment range for a third-degree felony, such as retaliation, is imprisonment for a term of not more than ten years or less than two years and a fine up to $10,000 may be assessed. Tex. Penal Code Ann. § 12.34(a) (West 2011). Under the habitual offender statute, however, when the defendant has been previously finally convicted of two felony offenses and the second previous conviction is for an offense that occurred subsequent to the first previous conviction having become final, as here, the punishment range is enhanced to imprisonment for life or for a term of not more than ninety-nine years or less than twenty-five years. See id. § 12.42(d) (West Supp. 2012); id. § 36.01(a)(1)(A) (West 2011).
3. Preservation of Error
To preserve a complaint that a sentence is disproportionate to the crime committed, a defendant must specifically object on that basis at the time the sentence is pronounced or in a post- trial motion. See Tex. R. App. P. 33.1(a)(1); Jacoby v. State, 227 S.W.3d 128, 130 (Tex. App.-Houston [1st Dist.] 2006, pet. ref'd); Castaneda v. State, 135 S.W.3d 719, 723 (Tex. App.-Dallas 2003, no pet.). Failure to do either results in waiver of the complaint. Jacoby, 227 S.W.3d at 130; Castaneda, 135 S.W.3d at 723. III. Ineffective Assistance of Counsel
An appellant claiming ineffective assistance must prove by a preponderance of the evidence that (1) counsel's performance was deficient and (2) appellant was prejudiced. Menefield v. State, 363 S.W.3d 591, 592 (Tex. Crim. App. 2012). When counsel's failure to preserve error is alleged as the basis for an ineffective assistance claim, the appellant must show the trial court would have committed error in either overruling the objection to the sentence or overruling a motion for new trial complaining of an excessive sentence. See Ex parte White, 160 S.W.3d 46, 53 (Tex. Crim. App. 2004). IV. Application of Law to Facts Garrison's two issues stem from the length of his sentence. In his second issue, he asserts his sentence is disproportionate to the crime he committed in violation of the Eighth Amendment's prohibition against cruel and unusual punishment. However, as Garrison himself recognizes in arguing his first issue, counsel did not object at the time of pronouncement that the sentence was excessive or move for a new trial based on that ground. Counsel's failure to object when the sentence was pronounced and failure to raise the issue in a motion for new trial, however, waived any error. Jacoby, 227 S.W.3d at 130; Castaneda, 135 S.W.3d at 723. Accordingly, we decide this issue against Garrison.
In his first issue, Garrison asserts trial counsel was ineffective for failing to object to the excessive sentence. To prevail on this issue, Garrison must show the trial court would have committed error in either overruling an objection to the sentence or denying a motion complaining of the excessiveness of the sentence. See White, 160 S.W.3d at 53. Garrison, however, was sentenced under the habitual offender statute, and his sentence fell well within the statutory range of punishment and roughly half-way between the State's plea for ninety-nine years and Garrison's plea for thirty to forty years. Moreover, Garrison pleaded guilty to threatening to murder or assault Brown, an elected state official, in retaliation for Brown's successful prosecution of certain felons. The threatening letters he sent to Brown contained vulgar, offensive and "white supremacist" type language and symbols and were taken "quite seriously" by Brown. Garrison also pleaded true to seven enhancement paragraphs. Of these paragraphs, five alleged prior convictions for similar retaliatory threats to other state and federal officials as well as family members and children. The remaining two enhancement paragraphs alleged prior convictions for escape and possession of a deadly weapon in a penal institution. Further, in addition to the prior convictions, Garrison had a lengthy TDC disciplinary record and had been cited for such conduct as threatening a guard, assaulting an officer "by threat," threatening to kill a warden, and attempting to escape. According to Speir, Garrison was considered a "high risk inmate."
Garrison's extensive criminal and disciplinary records demonstrate a prolonged inability to conform within social norms, and the various punishments he has received have not deterred him from committing new crimes. Although Garrison has no convictions for violent crimes, no evidence existed he would act on his threats, and the sixty-year consecutive sentence would extend his existing term of imprisonment beyond April 2016, we cannot conclude, considering the gravity of the instant crime, Garrison's admission to a "myriad" of offenses, and all other facts and circumstances, that Garrison's sentence is grossly disproportionate to his crime and cruel and unusual. See Winchester v. State, 246 S.W.3d 386, 388-91 (Tex. App.-Amarillo 2008, pet. ref'd)(concluding consecutive life sentences for third degree felony offenses of retaliation and failure to appear not grossly disproportionate to crime where appellant's criminal history spanned nearly twenty years, appellant had prior convictions for crimes of violence and crimes against authorities, appellant had escaped from confinement and committed multiple felonies before he was returned to jail, and appellant was punished under recidivist statute); Lackey, 881 S.W.2d at 421-22 (concluding thirty-five year enhanced sentence for third-degree felony theft of property not grossly disproportionate to crime where appellant had "extensive" criminal record, had not been deterred by prior convictions and punishment from committing additional offense, and was punished under habitual offender statute). Because we cannot conclude Garrison's sentence is grossly disproportionate, the trial court would not have erred in overruling any objection to the excessiveness of Garrison's sentence. See White, 160 S.W.3d at 53. Accordingly, trial counsel's representation was not ineffective. We decide Garrison's first issue against him.
V. Conclusion
Having decided Garrison's two issues against him, we affirm the trial court's judgment.
DOUGLAS S. LANG
JUSTICE
Do Not Publish
Tex. R. App. P. 47
110514F.U05
Court of Appeals Fifth District of Texas at Dallas JUDGMENT
WILLIAM SCOTT GARRISON, Appellant
V.
THE STATE OF TEXAS, Appellee
No. 05-11-00514-CR
Appeal from the 15th Judicial District Court of Grayson County, Texas. (Tr.Ct.No. 060031).
Opinion delivered by Justice Lang, Justices Bridges and Francis participating.
Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED.
Judgment entered August 16, 2012.
DOUGLAS S. LANG
JUSTICE