No. 12-06-00401-CR
Opinion delivered October 11, 2007. DO NOT PUBLISH.
Appeal from the 241st Judicial District Court of Smith County, Texas.
Panel consisted of WORTHEN, C.J., GRIFFITH, J., and HOYLE, J.
JAMES T. WORTHEN, Chief Justice.
Chad Medlock appeals from his conviction for aggravated assault. In two issues, he argues that the evidence was factually insufficient to sustain the conviction and that the sentence is grossly disproportionate. The State did not file a brief. We affirm.
BACKGROUND
On July 9, 2006, Pam Medlock was asleep on her bed when she awoke to Appellant straddling her back. Appellant was her husband, although they were separated at the time. Appellant was angry, and he put a knife to her neck. The knife cut her on her neck behind her ear. Appellant said, "Bitch, I told you. So you got a boyfriend, huh? I come [sic] here to kill you." Pam begged for her life, told him to remember her boys, whom he treated as his own children, and told him she had to go to the bathroom. He refused, and she soiled herself. Appellant then let her get up and go to the bathroom, but he followed her and took her cellular telephone. Appellant began reviewing the call logs on her telephone and asked her if one of the names listed was the name of her boyfriend. She tried to explain, but he grabbed her hair and moved her into the hallway. There, Appellant began swinging the knife around and cut the wall in several places. He stabbed the wall with the knife, and then to show her how sharp the knife was, Appellant cut his shirt off with it and then cut a piece of paper. Pam tried to bargain with Appellant, offering to reconcile, and then agreeing to have sex with him. This alleviated the immediate problem, and Appellant helped her iron her clothes so she could go to work. Pam went to work. She was shaken, and her supervisor and another coworker convinced her to leave work and to make a police report. She reported the incident to the police, who began an investigation. The police went to the home and found Appellant, naked and asleep in bed, with an open knife laying nearby. Pam showed the police some of her hair that had been pulled out and the cut piece of paper, the cut shirt, and the cuts to the wall. The police arrested Appellant. A Smith County grand jury indicted Appellant for the felony offense of aggravated assault. The grand jury further alleged that he used a deadly weapon, and that he had been previously convicted of a felony offense. Appellant pleaded not guilty, and a jury trial was held. The jury found Appellant guilty as charged. Appellant pleaded "true" to the enhancement paragraph of the indictment. The State introduced evidence to show that Appellant had twice before been convicted of felony offenses, and the jury assessed punishment of forty years of imprisonment. This appeal followed. FACTUAL SUFFICIENCY OF THE EVIDENCE
In his first issue, Appellant argues that the evidence was factually insufficient to support his conviction. Analysis
We review the factual sufficiency of the evidence to determine whether, considering all the evidence in a neutral light, the evidence supporting the conviction is too weak to withstand scrutiny or the great weight and preponderance of the evidence contradicts the jury's verdict to the extent that the verdict is clearly wrong and manifestly unjust. See Watson v. State , 204 S.W.3d 404, 414-15, 417 (Tex.Crim.App. 2006). In doing so, we must first assume that the evidence is legally sufficient under the Jackson v. Virginia standard. See Clewis v. State , 922 S.W.2d 126, 134 (Tex.Crim.App. 1996). We then consider all of the evidence that tends to prove the existence of the elemental fact in dispute and compare it to the evidence that tends to disprove that fact. See Santellan v. State , 939 S.W.2d 155, 164 (Tex.Crim.App. 1997). Our role is that of appellate review, and the fact finder is the judge of the weight and credibility of a witness's testimony. Wesbrook v. State , 29 S.W.3d 103, 111-12 (Tex.Crim.App. 2000). The fact finder may choose to believe all, some, or none of a witness's testimony. Sharp v. State , 707 S.W.2d 611, 614 (Tex.Crim.App. 1986). When we review the factual sufficiency of the evidence, we are authorized to disagree with the jury's determination, even if probative evidence exists that supports the verdict. See Clewis , 922 S.W.2d at 133. But our evaluation should not substantially intrude upon the jury's role as the judge of the weight and credibility of witness testimony. See Santellan , 939 S.W.2d at 164. As charged, the State was required to prove that Appellant intentionally or knowingly caused or threatened to cause bodily injury to another and used or exhibited a deadly weapon. TEX. PENAL CODE ANN. § 22.02(a)(2) (Vernon 2006). Analysis
Appellant does not argue that a specific element was not proved. Rather, he argues broadly that the complaining witness's testimony should not be believed because her testimony "wholly def[ies] logic." Specifically, he asserts that it makes no sense that a woman would be intimate with a person who had just threatened to kill her and that a man who threatens to kill a woman would not have sex with her and then iron her clothes for work. Appellant then suggests that this court "can readily see other parts of [her] testimony which defy logic and are probably then, not true," and that her testimony does not "ring true." Finally, Appellant lists a number of facts that he contends suggest she was lying. They include her desire to be out of a "bad marriage," her agreement to talk to Appellant after work, the fact that her report to the police was not immediate, and the fact that Appellant gave her phone back. We agree with Appellant that the jury could have considered these arguments in reaching their decision. But we are not persuaded that the jury's resolution of these issues was unreasonable. The complaining witness offered a compelling rationale for agreeing to have sex with Appellant, that she was seeking to preserve her physical safety. Her report to the police followed only a short delay, and her claim was corroborated by substantial physical evidence. The jury's verdict meant they found the complaining witness to be credible. The verdict is not contradicted by the great weight and preponderance of the evidence, nor are we convinced that the verdict is clearly wrong or represents a manifest injustice. We overrule Appellant's first issue. CRUEL AND UNUSUAL PUNISHMENT
In his second issue, Appellant contends that the assessed sentence constituted cruel and unusual punishment under both the Texas and United States constitutions. Initially, we note that Appellant made no objection to the trial court raising the issue of cruel and unusual punishment and has, therefore, waived appellate consideration of this issue. See Rhoades v. State , 934 S.W.2d 113, 120 (Tex.Crim.App. 1996) (waiver with regard to rights under the Texas Constitution); Curry v. State , 910 S.W.2d 490, 497 (Tex.Crim.App. 1995) (waiver with regard to rights under the United States Constitution); TEX. R. APP. P. 33.1. However, even absent waiver, we conclude that Appellant's sentence did not constitute cruel and unusual punishment. The legislature is vested with the power to define crimes and prescribe penalties. See Davis v. State , 905 S.W.2d 655, 664 (Tex.App.-Texarkana 1995, pet. ref'd); see also Simmons v. State , 944 S.W.2d 11, 15 (Tex.App.-Tyler 1996, pet. ref'd). Punishment that falls within the limits prescribed by a valid statute is not excessive, cruel, or unusual. See Harris v. State , 656 S.W.2d 481, 486 (Tex.Crim.App. 1983); Jordan v. State , 495 S.W.2d 949, 952 (Tex.Crim.App. 1973); Davis , 905 S.W.2d at 664. In the case at hand, Appellant was convicted of aggravated assault. Because the grand jury alleged and the State proved that he had a prior felony conviction, the range of punishment shifted from that of a second degree felony, for aggravated assault with a deadly weapon, to that of a first degree felony. See TEX. PENAL CODE ANN. § 22.02(b), 12.42(b) (Vernon 2006). The punishment range for such an offense is between five and ninety — nine years of imprisonment, or life imprisonment. See TEX. PENAL CODE ANN. § 12.32(a) (Vernon 2006). Here, the punishment assessed by the jury falls within the range set forth by the legislature. Id. Therefore, the punishment is not cruel, unusual, or excessive per se. Under Solem v. Helm , 463 U.S. 277, 103 S. Ct. 3001, 77 L. Ed. 2d 637 (1983), a disproportionate sentence within the range of punishment can violate the Eighth Amendment. The proportionality of a sentence is evaluated by considering (1) the gravity of the offense and the harshness of the penalty, (2) the sentences imposed on other criminals in the same jurisdiction, and (3) the sentences imposed for commission of the same crime in other jurisdictions. Solem , 463 U.S. at 292, 103 S. Ct. at 3011. The application of the Solem test has been modified by Texas courts and the Fifth Circuit Court of Appeals in light of the Supreme Court's decision in Harmelin to require a threshold determination that the sentence is grossly disproportionate to the crime before addressing the remaining elements. See, e.g., McGruder , 954 F.2d 313 at 316; see also Jackson v. State , 989 S.W.2d 842, 845-46 (Tex.App.-Texarkana 1999, no pet.). In determining whether Appellant's sentence is grossly disproportionate, we are guided by the holding in Rummel v. Estelle , 445 U.S. 263, 100 S. Ct. 1133, 63 L. Ed. 2d 382 (1980). In Rummel , the Supreme Court addressed the proportionality claim of an appellant who had received a mandatory life sentence under a prior version of the Texas habitual offender statute for a conviction of obtaining $120.75 by false pretenses because he had two prior felony convictions, also minor property crimes. Id. , 445 U.S. at 266, 100 S. Ct. at 1134-35. After recognizing the legislative prerogative to classify offenses as felonies and, further, considering the purpose of the habitual offender statute, the court determined that the appellant's mandatory life sentence did not constitute cruel and unusual punishment. Id. , 445 U.S. at 285, 100 S. Ct. at 1145. In the case at hand, the offense committed by Appellant — he assaulted a sleeping woman with a knife — was far more serious than any of the offenses committed by the appellant in Rummel . Furthermore, Appellant had twice before been convicted of felony offenses, had a term of community supervision revoked, and served time in the penitentiary. And Appellant's forty year sentence is less severe than the life sentence upheld by the Supreme Court in Rummel . Thus, it follows that if the sentence in Rummel was not unconstitutionally disproportionate, then neither is the sentence assessed against Appellant in this case. Because the threshold test has not been satisfied, we need not apply the remaining elements of the Solem test. Appellant's second issue is overruled. DISPOSITION
Having overruled Appellant's two issues, we affirm the judgment of the trial court.