James Forbit v. the State of Texas ( 2021 )

Reformed and Affirmed and Opinion Filed May 11, 2021
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-19-00946-CR
JAMES FORBIT, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 204th Judicial District Court
Dallas County, Texas
Trial Court Cause No. F18-52005-Q
MEMORANDUM OPINION
Before Justices Myers, Osborne, and Carlyle
Opinion by Justice Myers
Appellant entered an open plea of guilty to the offense of aggravated assault
with a deadly weapon, and the trial court made an affirmative deadly weapon finding
and a family violence finding. The trial court assessed punishment at fifteen years
in prison. In two issues, appellant argues his sentence was grossly disproportionate
and inappropriate under the Eight Amendment of the U.S. Constitution and Article
I, section 13 of the Texas Constitution. We affirm.
DISCUSSION
In his first issue, appellant contends his fifteen-year sentence violates the
Eighth Amendment because it is grossly disproportionate to the crime and
inappropriate to the offender. Appellant’s second issue raises the same complaint
under Article I, section 13 of the Texas Constitution.
However, the record must show appellant made a timely request, objection,
or motion for error to be preserved on appeal. See TEX. R. APP. P. 33.1(a)(1).
Constitutional rights, including the right to be free from cruel and unusual
punishment, may be waived. See Castaneda v. State, 135 S.W.3d 719, 723 (Tex.
App.—Dallas 2003, no pet.). When appellant’s sentence was announced, he did not
object to the sentence as violating his constitutional rights, nor did he raise this issue
in a post-conviction motion. Thus, appellant has not preserved his issues for
appellate review.
And even if appellant had properly preserved the issues for our review, the
sentence is not grossly disproportionate. Using nearly identical language, both the
United States and Texas Constitutions prohibit cruel and/or unusual punishment and
the Texas Court of Criminal Appeals has concluded there is no significant difference
between the protections afforded in the two provisions. See Cantu v. State, 939
S.W.2d 627, 645 (Tex. Crim. App. 1997); see also Grigsby v. State, No. 05-19-
00738-CR, 2020 WL 2847289, at *1 (Tex. App.—Dallas June 2, 2020. pet. ref’d)
(mem. op., not designated for publication); Hornsby v. State, No. 05-18-00479-CR,
2019 WL 3315448, at *2 (Tex. App.—Dallas July 24, 2019, pet. ref’d) (mem. op.,
not designated for publication). Therefore, the two claims will be analyzed together.
Texas courts have traditionally held that so long as the punishment is within
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the range established by the legislature in a valid statute, the punishment assessed
does not violate either the federal or Texas prohibitions against cruel and/or unusual
punishment. See Samuel v. State, 477 S.W.2d 611, 614 (Tex. Crim. App. 1972)
(“[T]his court has frequently stated that where the punishment assessed by the judge
or jury was within the limits prescribed by the statute the punishment is not cruel
and unusual within the constitutional prohibition.”); Grigsby, 2020 WL 2847289, at
*2; Hornsby, 2019 WL 3315448, at *2.
In this case, appellant was charged with and entered an open plea of guilty to
the offense of aggravated assault with a deadly weapon, a second-degree felony. See
TEX. PENAL CODE § 22.02(a)(2). The applicable punishment range is not more than
twenty or less than two years in prison and a fine not to exceed $10,000. See id. §
12.33(a). Appellant’s fifteen-year sentence falls within this range, and, therefore,
cannot be considered cruel or unusual. Accordingly, as appellant’s fifteen-year
sentence falls within the statutory range for the charge offense, the punishment
cannot be considered cruel or unusual. See Samuel, 477 S.W.2d at 614; Grigsby,
2020 WL 2847289, at *2; Hornsby, 2019 WL 3315448, at *2.
A very narrow exception exists that an individual’s sentence may constitute
cruel and unusual punishment, despite falling in the statutory range, if it is grossly
disproportionate to the offense. See Kim v. State, 283 S.W.3d 473, 475 (Tex. App.—
Fort Worth 2009, pet. ref’d); Grigsby, 2020 WL 2847289, at *2; Hornsby, 2019 WL
3315448, at *3. To evaluate the proportionality of a sentence, we first make a
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threshold comparison of the gravity of the offense against the severity of the
sentence. Grigsby, 2020 WL 2847289, at *2; Hornsby, 2019 WL 3315448, at *3.
When we analyze the gravity of the offense, we examine the harm caused or
threatened to the victim, the culpability of the offender, and the offender’s prior
adjudicated and unadjudicated offenses. See State v. Simpson, 488 S.W.3d 318, 323
(Tex. Crim. App. 2016); Grigsby, 2020 WL 2847289, at *2; Hornsby, 2019 WL
3315448, at *3. Only if gross disproportionality is found do we then compare the
sentence to sentences received for similar crimes in this and other jurisdictions.
Simpson, 488 S.W.3d at 323.
The record in this case shows appellant judicially confessed that on or about
February, 13, 2018, he intentionally, knowingly and recklessly caused bodily injury
to the complainant, Karla Robinson, by stabbing and cutting her with a knife; that
he used a deadly weapon (a knife) during the commission of this assault; and that he
had dating relationship with Robinson, a member of appellant’s family and
household. Evidence shows appellant stabbed Robinson in the presence of her nine-
year-old son, who called 911. The recording of the child’s 911 call, during which
he hid in a locked bedroom, is part of the record. Robinson testified that she suffered
puncture wounds to her head, breast, abdomen, hip, and leg, some of which had to
be stapled to be closed. Robinson’s testimony further shows that, during the assault,
appellant left to get a shotgun and returned with fuel and threatened to burn down
the house and kill Robinson and her son. In addition, Robinson testified there was
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a prior unadjudicated offense involving appellant where they were arguing and he
“kind of pushed” her, and she “may have tripped” and “slipped” backwards.
Robinson’s son also was present during this incident and, as Robinson
acknowledged, a neighbor witnessed some of what happened.1
Based on this record, we cannot conclude appellant’s fifteen-year sentence
qualified as grossly disproportionate to the offense. Therefore, appellant’s sentence
does not constitute cruel and unusual punishment.
We note one clerical error in the judgment. It recites the basis for the trial
court’s affirmative deadly weapon finding as “Tex. Code Crim. Proc. Art. 42.12 §
3g.” Article 42.12 of the Texas Code of Criminal Procedure was repealed and
replaced with Chapter 42A, effective January 1, 2017. See Wright v. State, No. 05-
19-00112-CR, 2019 WL 6124737, at *2 (Tex. App.—Dallas Nov. 19, 2019, no pet.)
(mem. op., not designated for publication); Caballero v. State, No. 05-18-01338-
CR, 2019 WL 5112270, at *1 (Tex. App.—Dallas Oct. 10, 2019, no pet.) (mem. op.,
not designated for publication); Tarver v. State, No. 05-18-00589-CR, 2019 WL
1785342, at *2 (Tex. App.—Dallas April 24, 2019, no pet.) (mem. op. not designated
for publication).
The statute relevant to the trial court’s entry of an affirmative deadly weapon
1
Appellant argued he should receive probation and Robinson testified on his behalf, asking the trial
court not to sentence him to prison. Details surrounding the offense were developed by State on cross-
examination, and the court also questioned Robinson.
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finding is now codified in article 42A.054(c). See TEX. CODE CRIM. PROC. ANN. art.
42A.054(c). The indictment alleges the offense was committed on or about February
13, 2018, and the judgment was entered on May 9, 2019. Hence, article 42A.054(c)
is the applicable statute. See, e.g., Wright, 2019 WL 6124737, at *2 (modifying
judgment to reflect correct statutory basis to support deadly weapon finding as article
42A.054(c)).
When the record provides the necessary information to correct inaccuracies in
the trial court’s judgment, we have the authority to reform the judgment to speak the
truth. TEX. R. APP. P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27–28 (Tex. Crim.
App. 1993); Asberry v. State, 813 S.W.2d 526, 529–30 (Tex. App.—Dallas 1991,
pet. ref’d). Accordingly, because the citation to Article 42.12 § 3g in the judgment
is a clerical error and not an error of judicial reasoning, we modify the judgment to
reflect that the statutory basis for the affirmative deadly weapon finding is “Tex.
Code Crim. Proc. 42A.054(c).”
We overrule appellant’s issues and, as modified, affirm the trial court’s
judgment.
/Lana Myers//
LANA MYERS
190946f.p05 JUSTICE
Do Not Publish
TEX. R. APP. P. 47.2(b)
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Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
JAMES FORBIT, Appellant On Appeal from the 204th Judicial
District Court, Dallas County, Texas
No. 05-19-00946-CR V. Trial Court Cause No. F18-52005-Q.
Opinion delivered by Justice Myers.
THE STATE OF TEXAS, Appellee Justices Osborne and Carlyle
participating.
Based on the Court’s opinion of this date, the judgment of the trial court is
MODIFIED as follows:
In the statutory basis for the special findings section on the second page
of the judgment, “Tex. Code Crim. Proc. Art. 42.12 § 3g” is replaced
with “Tex. Code Crim. Proc. art. 42A.054(c).”
As REFORMED, the judgment is AFFIRMED.
Judgment entered this 11th day of May, 2021.
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