Opinion
No. 11-21-00015-CR
09-16-2022
Rachel Lakaye GUILLORY, Appellant v. The STATE of Texas, Appellee
Lane Haygood, Bailey & Galyen, Odessa, for Appellant. Dusty Gallivan, District Attorney, Michael Bloch, Assistant, Michelle Townsend, Assistant, Ector County District Attorney's Office, Odessa, for Appellee.
Lane Haygood, Bailey & Galyen, Odessa, for Appellant.
Dusty Gallivan, District Attorney, Michael Bloch, Assistant, Michelle Townsend, Assistant, Ector County District Attorney's Office, Odessa, for Appellee.
Panel consists of: Bailey, C.J., Williams, J., and Wright, S.C.J.
Jim R. Wright, Senior Chief Justice (Retired), Court of Appeals, 11th District of Texas at Eastland, sitting by assignment.
W. BRUCE WILLIAMS, JUSTICE
On November 16, 2015, Appellant, Rachel Lakaye Guillory, pled guilty to the offense of aggravated assault. Pursuant to the terms of the plea agreement, the trial court deferred a finding of guilt and placed Appellant on community supervision for two years. The State subsequently filed a motion to adjudicate, and the trial court held a hearing on the motion. Following a finding of "true" for allegations of multiple violations of community supervision, the trial court revoked Appellant's community supervision and adjudicated Appellant guilty of the charged offense and assessed her punishment at confinement for twenty years in the Institutional Division of the Texas Department of Criminal Justice. We affirm the judgment.
Factual and Procedural History
In 2014, Appellant was indicted by a grand jury in Ector County, Texas, for the second-degree felony offense of aggravated assault. See TEX. PENAL CODE ANN. §§ 22.02(a)(1), (b) (West Supp. 2021). Appellant pled guilty to the offense, and the trial court entered an order of deferred adjudication on November 16, 2015. The trial court placed Appellant on deferred adjudication community supervision for a period of two years. On the same day, the trial court signed an order permitting Appellant to report to the Community Supervision and Corrections Department in Harris County, the location of her residence at the time of the plea.
On July 5, 2017, the State filed a motion for issuance of a warrant and to adjudicate guilt, alleging six violations of community supervision. Following a hearing before the trial court on May 2, 2018, Appellant's deferred adjudication community supervision was continued and modified. Appellant's term of community supervision was extended for five years, to begin November 16, 2017, and the modification included a required term of confinement and treatment in a substance abuse facility, along with the payment of designated fees. On October 2, 2019, the State filed an amended motion for issuance of a warrant and to adjudicate guilt, alleging eight violations of community supervision. The State's motion was amended two more times, the final version—alleging eleven violations—filed on August 4, 2020. The trial court held a hearing on November 23, 2020, at which Appellant pled "not true" to each of the eleven allegations against her. Following testimony from four witnesses for the State and one for Appellant, the trial court found nine of the alleged community supervision violations to be "true." The trial court adjudicated Appellant guilty of the underlying aggravated assault and sentenced her to twenty years’ imprisonment.
The final (3rd Amended) Motion for Warrant and to Adjudicate Guilt filed on August 4, 2020, includes the same first four alleged violations from the July 5, 2017 motion that served as the basis for the May 2, 2018 hearing.
The November 23, 2020 hearing followed a hearing in August 2020, where Appellant pled "true." This judgment was then vacated when Appellant's subsequent motion for new trial was granted by the trial court on September 22, 2020. The current appeal before us stems from the events of the second hearing on November 23, 2020, in which Appellant pled "not true" to all eleven alleged violations of her community supervision.
Appellant alleges three errors in her appeal: first, that the trial court violated her Sixth Amendment Confrontation Clause right in allowing three of the State's witnesses to testify telephonically; second, that the sentence imposed upon her violates the Eighth Amendment guarantee against cruel and unusual punishment; and third, that the trial court abused its discretion when it revoked her community supervision and adjudicated her guilt. We begin with the Sixth Amendment Confrontation Clause claim, followed by the claim that the trial court abused its discretion, and conclude with Appellant's Eighth Amendment claim.
Issue One
In Appellant's first issue, she claims that her right to face-to-face confrontation under the Sixth Amendment was violated. Appellant's revocation/adjudication hearing was held on November 23, 2020. The State presented four witnesses and Appellant presented one. The State produced community supervision officer Deyda Alli (Officer Alli) as a witness, who testified in person and who provided testimony of five community supervision violations by Appellant. Three of the State's witnesses testified telephonically, over a Confrontation Clause objection from Appellant's counsel. Appellant argues that this testimony amounted to constitutional error and that it harmfully contributed to the revocation of her deferred adjudication community supervision.
The Confrontation Clause by its own terms applies only to "criminal prosecutions." U.S. CONST. amend VI (criminal defendants "in all criminal prosecutions ... shall enjoy the right ... to be confronted with the witnesses against him"). We note at the outset that in Mauro v. State , we held that the Confrontation Clause does not apply to a revocation proceeding on the basis that it is not a stage of a criminal prosecution. 235 S.W.3d 374, 376 (Tex. App.—Eastland 2007, pet. ref'd) (discussing Crawford v. Washington , 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004) ). Appellant contends that our holding in Mauro was abrogated by Ex parte Doan , 369 S.W.3d 205 (Tex. Crim. App. 2012). We disagree.
In Doan , the Texas Court of Criminal Appeals determined that community supervision revocation hearings are "judicial proceedings." 369 S.W.3d at 212 ("Community-supervision revocation proceedings are not administrative hearings; they are judicial proceedings, to be governed by the rules established to govern judicial proceedings."). However, the court did not hold that they constitute a phase of "criminal prosecution" under the Sixth Amendment. Id.
Following Doan , Texas intermediate appellate courts have held that a proceeding to adjudicate guilt in the deferred adjudication context is not a stage of "criminal prosecution" for the purpose of the Sixth Amendment. See White v. State , No. 02-21-00059-CR, 2022 WL 623450, at *6–7 (Tex. App.—Fort Worth March 3, 2022, no pet.) (mem. op., not designated for publication) ("[W]e conclude that a community supervision revocation proceeding is not a stage of criminal prosecution. Accordingly, the Confrontation Clause is inapplicable in those proceedings ...." (quoting Pickins v. State , No. 02-17-00050-CR, 2018 WL 3468359, at *4 (Tex. App.—Fort Worth July 19, 2018, no pet.) (mem. op., not designated for publication) )); Taylor v. State , No. 09-19-00171-CR, 2020 WL 6472684, at *6 (Tex. App.—Beaumont Nov. 4, 2020, no pet.) (mem. op., not designated for publication) ("[T]he Confrontation Clause does not apply to revocation proceedings."); Hodges v. State , No. 04-19-00382-CR, 2020 WL 1930485, at *2 (Tex. App.—San Antonio April 22, 2020, no pet.) (mem. op., not designated for publication) (Because revocation proceedings "are not ‘a stage of criminal prosecution,’ the constitutional right to confront one's accuser does not apply in such proceedings."); Olabode v. State , 575 S.W.3d 878, 881 (Tex. App.—Dallas 2019, pet. ref'd) ("[T]his Court has concluded the right to confrontation under the Sixth Amendment does not apply during revocation proceedings."); Corona v. State , No. 14-17-00821-CR, 2019 WL 1768598, at *3 (Tex. App.—Houston [14th Dist.] April 23, 2019, no pet.) (mem. op., not designated for publication) ("A community supervision revocation hearing is not part of a criminal prosecution."); Anthony v. State , No. 03-17-000327-CR, 2019 WL 639492, at *3 (Tex. App.—Austin Feb. 15, 2019, pet. ref'd) (mem. op., not designated for publication) ("[T]he right to confrontation has been held inapplicable to hearings for the revocation of probation" because it is "not a stage or phase of "criminal prosecution" under the Sixth Amendment."); Alvarez v. State , No. 11-13-00322-CR, 2015 WL 6121359, at *3 (Tex. App.—Eastland Oct. 15, 2015, no pet.) (mem. op., not designated for publication) ("The underlying proceeding to consider the State's motion to adjudicate Appellant's guilt was not a phase of criminal prosecution for purposes of the Sixth Amendment.").
We have consistently held that the Confrontation Clause does not apply to revocation proceedings. Mauro , 235 S.W.3d at 376 ; see Alvarez , 2015 WL 6121359, at *3. And while the Court of Criminal Appeals has issued no opinion addressing the issue directly, it has not overruled any pre- Doan intermediate appellate court decisions holding that the Confrontation Clause does not apply in revocation proceedings. See Rico v. State , No. 01-21-00051-CR, 2022 WL 2163022, at *3 (Tex. App.—Houston [1st Dist.] June 16, 2022, no pet. h.) (mem. op., not designated for publication) (acknowledging that the question of whether the Confrontation Clause applies to revocation proceedings remains unsettled, and no pre- Doan intermediate appellate decisions have been overturned by the Court of Criminal Appeals on this issue). Due to our own prior holdings, and those of the Court of Criminal Appeals, we hold that the trial court did not err in overruling Appellant's objection under the Confrontation Clause because it does not apply to community supervision revocation hearings. Thus, we re-affirm our holding in Mauro post- Doan.
We overrule Appellant's first issue.
Issue Three
In Appellant's third issue, she alleges that the trial court abused its discretion in finding the eleventh alleged violation "true." Appellant also contends that the trial court impermissibly relied on alleged violations one, two, three, and four when they were violations predating the trial court's modification order, but Appellant does not support this contention with substantive argument. Appellant acknowledges the trial court's finding that violations five, six, seven, and eight were "true"—and disagrees with the trial court—but also provides no substantive argument on appeal to discredit the findings. Without any substantive argument as to why the trial court abused its discretion in finding alleged violations one, two, three, four, five, six, seven, and eight "true," the findings are effectively unchallenged on appeal.
"In a revocation proceeding, the trial court has discretion to revoke community supervision when a preponderance of the evidence supports one of the State's allegations that the defendant violated a condition of his community supervision." Leonard v. State , 385 S.W.3d 570, 576 (Tex. Crim. App. 2012) (emphasis added). We will affirm an order revoking community supervision if the State proves any violation by a preponderance of the evidence. Alvarez , 2015 WL 6121359, at *4. And the "trial court's judgment should be affirmed if the appellant does not challenge all of the grounds on which the trial court revoked community supervision." Id. (emphasis added) (citing Joseph v. State , 3 S.W.3d 627, 640 (Tex. App.—Houston [14th Dist.] 1999, no pet.) ).
Appellant does not substantively challenge the "true" finding on allegations one, two, three, four, five, six, seven, and eight. Officer Alli, who appeared in person, testified that Appellant violated the terms of her community supervision by testing positive for cocaine on January 14, 2016, testing positive for marihuana on January 25, 2017, testing positive for cocaine and marihuana on May 5, 2017, and failing to pay her monthly community supervision fees on August 1, 2019, or any subsequent month. These allegations are listed as violations one, two, three, four, and five in the State's motion to adjudicate. In the record of the revocation/adjudication hearing, we have testimony from an in-person witness to support five findings of "true" by the trial court. Only one alleged violation is required to be "true" in order to revoke community supervision. Accordingly, we do not address Appellant's challenge of the trial court's finding of true for the eleventh alleged violation.
Alleged violations one through four are discussed above and alleged violations five through eight include: Appellant's failure to make minimum monthly payments of supervision fees beginning August 1, 2019; Appellant's failure to abstain from drugs, to wit: cocaine, on or about August 28, 2019, and September 5, 2019; and Appellant's failure to submit to a urinalysis on September 4, 2019.
Appellant argues that violations one through four are invalid because the violations predate the trial court's modification order on May 2, 2018. However, on May 2, 2018, the trial court specifically stated that it was "not addressing those allegations at this time" and that those "allegations will remain pending, if ... there are further violations." The trial court asked Appellant if she understood that these allegations would remain pending, and she responded: "Yes, sir." Appellant provides no additional evidence, and the record fails to reveal that the same grounds were used to both modify and revoke her community supervision. See Sanchez v. State , 603 S.W.2d 869, 870–71 (Tex. Crim. App. 1980) (where the appellant contended that the trial court erred in using the same probation violation to revoke probation as had been used to previously modify the probation and the Court of Criminal Appeals held that if any single ground for revocation is sufficient, the trial court has not abused its discretion in revoking probation).
We acknowledge that the "Continuation and Modification with Special Conditions of Order Granting Community Supervision Given the 16th Day of November 2015" signed by the trial court on May 2, 2018, includes a sentence that indicates the trial court did find that "the Defendant has violated one or more of the terms of community supervision." Appellant raises no complaint on appeal that the reporter's record contains error. Accordingly, we find that the reporter's record is an accurate representation of the considerations of the trial court in the modification of Appellant's community supervision.
As to the other grounds, Appellant merely states that allegation five is an abuse of discretion and that allegations six, seven, and eight are "similar" to others that are invalid (one through four), but these are not substantive challenges to the findings of "true" made by the trial court. Appellant points to nothing in the record to support her assertions. Therefore, even if we agreed with Appellant's arguments about alleged violations one, two, three, four, and eleven, we would still be required to affirm the trial court's judgment adjudicating guilt based upon the four unchallenged findings of "true." We overrule Appellant's third issue.
Issue Two
In Appellant's second issue, she alleges that the imposition of the maximum sentence for "simple aggravated assault" is a violation of the Eighth Amendment guarantee against cruel and unusual punishment. Appellant argues that because the indictment of her underlying offense does not allege the use of a deadly weapon or aggravating factors aside from serious bodily injury, that the maximum sentence is grossly disproportionate.
To preserve a complaint that a sentence constitutes cruel and unusual punishment, a defendant must first raise the issue to the trial court by a "timely request, objection, or motion" stating grounds for the desired ruling and the trial court must either rule or refuse to rule on the request, objection, or motion. TEX. R. APP. P. 33.1(a)(1), (2) ; Jones v. State , No. 11-19-00251-CR, 2021 WL 3413794, at *1 (Tex. App.—Eastland Aug. 5, 2021, no pet.) (mem. op., not designated for publication). An appellant may also preserve a sentencing issue by raising it in a motion for new trial. Jones , 2021 WL 3413794, at *2. Appellant did not object that her sentence was cruel, unusual, disproportionate, or excessive when the trial court pronounced the sentence, but Appellant did object in the motion for new trial, which was denied by the trial court. Therefore, Appellant's issue was preserved for our review.
When we review a trial court's sentencing determination, "a great deal of discretion is allowed the sentencing judge." Jackson v. State , 680 S.W.2d 809, 814 (Tex. Crim. App. 1984). We will not disturb a trial court's decision as to punishment "absent a showing of abuse of discretion and harm." Id. (citing Hogan v. State , 529 S.W.2d 515 (Tex. Crim. App. 1975) ). To run afoul of the Eighth Amendment, a sentence must be grossly disproportionate to the crime. State v. Simpson , 488 S.W.3d 318, 322 (Tex. Crim. App. 2016) (quoting Ewing v. California , 538 U.S. 11, 23, 123 S.Ct. 1179, 155 L.Ed.2d 108 (2003) (plurality opinion)). A punishment for a term of years will be grossly disproportionate "only in the exceedingly rare or extreme case." Id. at 322–23 (citing Lockyer v. Andrade , 538 U.S. 63, 73, 123 S.Ct. 1166, 155 L.Ed.2d 144 (2003) ). Further, a punishment that falls within the statutory range for an offense, as determined appropriate by the legislature, will generally not be considered "excessive, cruel, or unusual." Id. at 323 (citing Ex parte Chavez , 213 S.W.3d 320, 323–24 (Tex. Crim. App. 2006) ). To determine whether a sentence for a term of years is grossly disproportionate to the offense committed, we "must judge the severity of the sentence in light of the harm caused or threatened to the victim, the culpability of the offender, and the offender's prior adjudicated and unadjudicated offenses." Id. (citing Graham v. Florida , 560 U.S. 48, 60, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010) ; McGruder v. Puckett , 954 F.2d 313, 316 (5th Cir. 1992) ). Only if grossly disproportionate to the offense, must we then compare Appellant's sentence with the sentences received for similar crimes in this jurisdiction or in other jurisdictions. Bradfield v. State , 42 S.W.3d 350, 353–54 (Tex. App.—Eastland 2001, pet. ref'd).
Appellant pled guilty to the second-degree felony offense of aggravated assault. See PENAL § 22.02(a)(1), (b). The punishment range for a second-degree felony is imprisonment for two to twenty years. Id. § 12.33 (West 2019). Appellant's twenty-year sentence falls within the statutory punishment range. A sentence within the statutory range is rarely cruel or unusual. See Simpson , 488 S.W.3d at 323. When we examine whether a sentence is too severe for the gravity of the offense, "we examine the harm caused or threatened to the victim or society, and the culpability of the offender." Renfroe v. State , 529 S.W.3d 229, 234 (Tex. App.—Eastland 2017, pet. ref'd).
Here, Appellant's offense was that of aggravated assault causing serious bodily injury to the victim. Appellant's Ector County community supervision officer, Officer Alli, testified that the victim was hit in the back of the head with a cell phone; her face was shoved into a window; and she was hit, kicked, and punched. Appellant committed the assault with the assistance of at least one other person. Officer Alli did not provide details on the lasting effects of the victim's injuries, but Appellant's willingness to engage in violence, and to engage in such acts with the help of others, is significant. This poses a real threat to society and increases the likelihood of serious harm. The trial court also found that Appellant repeatedly violated the terms of her community supervision by testing positive for drugs. Appellant provided no showing of abuse of discretion, and we cannot say that her sentence was grossly disproportionate in this case. Appellant's sentence is not grossly disproportionate to the offense of aggravated assault. While Appellant provided none, we need not compare sentences received for similar crimes in Ector County or in other jurisdictions to her sentence. See Bradfield , 42 S.W.3d at 353–54. Accordingly, we overrule Appellant's second issue.
This Court's Ruling
We affirm the judgment of the trial court.
Trotter, J., not participating.