Jordash Jerome Henderson v. State ( 2012 )

Affirmed and Memorandum Opinion filed January 19, 2012.
In The
Fourteenth Court of Appeals
___________________
NO. 14-10-00904-CR
___________________
JORDASH JEROME HENDERSON, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 268th Judicial District Court
Fort Bend County, Texas
Trial Court Cause No. 10-DCR-054132
MEMORANDUM OPINION
A jury convicted appellant, Jordash Jerome Henderson, of assault of a public
servant. See Tex. Penal Code Ann. § 22.01 (West 2011). The jury found the
enhancement allegations true and assessed appellant‘s punishment at 11 years‘
confinement in the Texas Department of Criminal Justice, Institutional Division. See id. §
12.42(a) (West 2011). Appellant challenges his conviction in two issues, arguing that (1)
the evidence was insufficient to convict him of assault of a public servant, and (2) the
sentence is grossly disproportionate to the offense and therefore violates the Eighth
Amendment. We affirm.
BACKGROUND
Albert Jimenez (―Jimenez‖), the complainant, is a certified peace officer and an
employee in the jail division of the Fort Bend County Sheriff‘s Department. On January
20, 2010, Jimenez was assigned to work in a ―control room‖ in the Fort Bend County Jail.1
When assigned to the control room, one of Jimenez‘s duties was managing the ―day room‖
area.2 At around 10:00 p.m., Jimenez ordered the inmates to return to their assigned cells
so that he could close the cell gates. All of the inmates complied with Jimenez‘s order,
except for appellant. Jimenez repeated his order to appellant several times and appellant
refused to comply. Jimenez stated that appellant asked him ―why‖ and requested to speak
with a supervisor. Jimenez then called for assistance.
Ray Alexander (―Alexander‖) is a certified peace officer and a deputy with the Fort
Bend County Sheriff‘s Department. Alexander testified that on the day of the incident, he
was assigned the duty of ―rover‖ at the jail. As a rover, one of Alexander‘s duties was to
assist the other officers with inmates. After receiving Jimenez‘s request for assistance,
Alexander immediately went to the section of the jail supervised by Jimenez. At that
point, Jimenez and Alexander entered the day room where appellant was standing. The
other inmates were locked in their assigned cells. Jimenez instructed appellant three times
to go to his assigned cell. When appellant again failed to comply, Jimenez testified he
called for an available supervisor. Appellant then ―lunged‖ toward Jimenez and bumped
his chest.
Alexander testified that after appellant bumped chests with Jimenez, he and Jimenez
―took [appellant] to the floor.‖ Alexander testified that when an inmate violates the rule
1
The ―control room‖ is a station separated from the inmates by glass. The gate controls are
located in this room.
2
The ―day room‖ is where the inmates gather to eat and watch television.
2
against physical contact with another, the officer has the ―right to … place him on the floor
or restrain him.‖ Once on the floor, appellant agreed to go to his cell. Alexander stated
that he did not think a supervisor was required by procedure, or that a supervisor was
necessary at that time. Jimenez and Alexander restrained appellant by grabbing
appellant‘s arms and holding them behind appellant‘s back. While restraining appellant,
Jimenez and Alexander escorted appellant to his cell. Both Jimenez and Alexander
testified that appellant resisted them on the way to the cell. Specifically, Alexander
testified that appellant tried to escape from Jimenez‘s hold. Alexander speculated that
appellant was ―testing‖ Jimenez. Alexander testified that at that point, they put appellant
―back on the floor.‖3
Once they regained control of appellant, Jimenez and Alexander forced appellant to
the back of his cell. They told appellant to remain motionless, facing the wall until they
exited the cell. When Alexander and Jimenez released appellant‘s arms, appellant swung
around quickly and struck Jimenez in the face with his fist. Jimenez and Alexander
proceeded to grab appellant and put him on the floor in order to regain control of him.
Jimenez testified that he called again for a supervisor. Until the supervisor arrived,
appellant continued to struggle and disobey orders to stop resisting.
Lynn Duran (―Duran‖) is a detention supervisor with the Fort Bend County
Sheriff‘s Office. Duran was the supervisor on duty at the time of the incident. Duran
testified that when he arrived at appellant‘s cell, appellant was still struggling with Jimenez
and Alexander. Duran stated that Jimenez and Alexander were attempting to place
handcuffs on appellant, but appellant was kicking and ―being belligerent.‖ Duran said
that it was only when he threatened to use his taser on appellant that appellant calmed down
and stopped struggling. In accordance with procedure, Jimenez was taken to a local
3
Jimenez testified that after the chest bump, Jimenez and Alexander restrained appellant but that
appellant was not ―taken to the floor‖ at this time. Jimenez further testified that the only time they took
appellant to the floor was after appellant struck Jimenez in the face.
3
hospital for evaluation. Officers involved in taking Jimenez‘s statement at the hospital
observed the red mark near his left eye; swelling; and other marks on both of his forearms.
Though Jimenez described losing his vision momentarily, there was no evidence of any
permanent injuries to Jimenez.
Deputy Jorge Astencio (―Astencio‖) of the Fort Bend County Sheriff‘s Office
testified that on the night of the incident at the jail, he was working in a tower control room.
He stated that he was on his way to his sergeant‘s office when he passed by a section of the
jail that holds combatant inmates, among others, in padded cells. He noticed appellant in
one of the cells and stopped to ask him what happened. Astencio stated that when he
approached appellant, appellant ―seemed very upset‖ and blamed Jimenez and Alexander
for his plight. Astencio also testified that appellant threatened to harm Jimenez and
Alexander when he was finally placed back in the general population of the jail.
Andre Buzek (―Buzek‖), appellant‘s cousin, testified that during a phone call on
May 10, 2010, appellant stated that ―he beat up an officer.‖ Buzek stated that he ―asked
[appellant] because I didn‘t understand what [appellant] said at first, so I asked him what
happened and [appellant] repeated it. [Appellant] said I beat up an officer.‖
Rodney Rodriguez (―Rodriguez‖), a sergeant at the courthouse and an employee of
the Fort Bend County Sheriff‘s Office, was the last witness to testify for the State.
Rodriguez testified that on Monday during the previous week, he was leaving the
courthouse around lunchtime and saw appellant being a ―little belligerent.‖ He stated that
appellant was a little angry and using some profane language. He further testified that
appellant threatened to ―kick [Rodriguez‘s] fucking ass‖ several times and that appellant
stated he would do it when he returned to court. Additionally, Rodriguez testified that
appellant stated he had ―already put one of y‘all in the hospital.‖ However, Rodriguez
admitted he did not know who appellant was referring to when appellant made that
statement.
4
The jury found appellant guilty of assault of a public servant. The punishment
stage commenced and was also tried to the jury.
At the punishment stage, the State sought to enhance appellant‘s punishment by
proving his status as a previously convicted felon. The State alleged that appellant had a
previous felony conviction for sexual assault of a child. Appellant pled true to this
enhancement. The State then presented the testimony of Houston Police Officer John
Barnes (―Barnes‖). Barnes testified that he met appellant in 2008 while investigating a
sexual assault of a child case. In that case, a fifteen-year-old boy complained that
appellant had sexually assaulted him. Barnes followed up on the complaint and
discovered that appellant was living with the boy in an apartment. Barnes further testified
that during his investigation of the sexual assault of a child case, he discovered that
appellant was a registered sex offender and was not registered at the apartment he leased.
Barnes stated that once appellant was arrested, he made a full confession to the crime.
Appellant testified on his own behalf at the punishment stage. He testified that his
―behavior wasn‘t warranted‖ and that he did not ―want to make any excuses.‖ He further
testified that Jimenez used ―excessive force‖ against him and that he did not initiate the
first physical contact. During cross-examination, the State used appellant‘s numerous
previous criminal convictions to impeach his credibility. The prior convictions brought
out during cross-examination included: aggravated sexual assault of a child, failure to
comply with sex offender registration requirements, unauthorized use of a motor vehicle,
two forgery convictions, fraudulent identification, and sexual assault of a child.
Fred Felcman (―Felcman‖), an Assistant District Attorney for Fort Bend County,
testified that a week prior to the punishment hearing, he witnessed appellant getting into a
jail transport van. He stated that appellant was being ―very belligerent‖ while a bailiff was
trying to put him in the van. Felcman testified that appellant used crude language to
describe the bailiff, and was ―enticing [the bailiff] to come at [appellant] and fight
5
[appellant].‖ Felcman stated that once the doors of the van were closed he could hear
somebody kicking the door from the inside of the van.
The jury assessed appellant‘s punishment at eleven years and a fine of $2,500.00.
INADEQUATE BRIEFING
To present an issue for appellate review, appellant‘s brief ―must contain a clear and
concise argument for the contentions made, with appropriate citations to authorities and to
the record.‖ See Tex. R. App. P. 38.1(i). Where an appellant fails to present an argument
in support of his complaint, fails to address the governing legal principles or apply them to
the facts, appellant waives the issue. Wooten v. State, 267 S.W.3d 289, 307–08 (Tex.
App.—Houston [14th Dist.] 2008, pet. ref‘d); King v. State, 17 S.W.3d 7, 23 (Tex.
App.—Houston [14th Dist.] 2000, pet. ref‘d) (finding briefing waiver where appellant‘s
brief cited a single case in support of his argument and failed to address any of the
governing legal principles or apply any such principles to the facts of the case).
Appellant presents two issues on appeal. The first is that the evidence is
insufficient to support his conviction. The second is that the sentence is grossly
disproportionate to the offense and thus violates the prohibition of cruel and unusual
punishment. The argument section of appellant‘s brief consists of a single sentence.4
The entire brief from the ―STATEMENT OF THE CASE‖ to the ―Prayer‖ totals two
pages.5 In these two pages, only two cases are cited.6 These two cases detail the standard
4
This sentence is as follows:
Evidence that is factually insufficient, when the evidence supporting the verdict,
considered alone, is too weak to support the finding of guilt beyond a reasonable doubt
or when evidence contrary to the verdict is so strong that the standard of beyond a
reasonable doubt can not (sic) have been met. Johnson v. State 172 S.W.3d 6, Brooks
v. State 967 Sw 2d 946, 948, 949 (sic)[.]
5
These two pages include a header that takes up nearly half of the first page, and a signature line
that takes up approximately a quarter of the second page.
6
The List of Authorities contains four cases. The two additional cases cited are: McKinney v.
State, 207 S.W.3d 366 (Tex. Crim. App. 2006); and Hall v. State, 158 S.W.3d 470 (Tex. Crim. App. 2005).
6
of review in a sufficiency challenge, the first issue presented on appeal. While in the
Summary of the Argument section appellant details the facts that he believes support his
sufficiency challenge, he completely disregards the requirement that he provide citations to
the record in support of his arguments. With regard to his second issue, appellant fails to
provide this court with citation to even a single case discussing this issue. Instead,
appellant merely states that his conviction ―violates the Eighth Amendment to the
Constitution of the United States in that said conviction is grossly disproportionate for this
particular offense.‖ There is only one other sentence in his entire brief discussing his
second issue.7 Appellant has failed to present an argument in support of his complaints,
address the governing legal principles or apply them to the facts. See Wooten, 267 S.W.3d
at 307–08; King, 17 S.W.3d at 23; see also Hicks v. State, 15 S.W.3d 626, 631 (Tex.
App.—Houston [14th Dist.] 2000, pet. ref‘d) (―[T]o adequately brief a constitutional issue
appellant must proffer specific arguments and authorities supporting his contentions under
the constitution.‖). We conclude appellant‘s issues are inadequately briefed and therefore
waived. We have nonetheless examined the entire record below in light of the stated
issues and determine that they should both be overruled.
SUFFICIENCY OF THE EVIDENCE
In his first issue, appellant argues that the evidence is legally insufficient to
establish that appellant acted with the requisite intent or knowledge because the
complainant, Jimenez, ―stepped outside the performance of his official duties.‖ Since
Jimenez ―affirmatively negated the lawful discharge of his duties,‖ appellant contends the
evidence is insufficient to uphold his conviction for assault of a public servant. See Tex.
Penal Code Ann. § 22.01(b).
When reviewing the sufficiency of the evidence, we examine all of the evidence in
the light most favorable to the verdict and determine whether a rational trier of fact could
7
―Whether the Eleven (sic) year sentence is grossly disproportionate for this particular offense and
is therefore in violation of the Eighth Amendment of the United states (sic) Constitution.‖
7
have found the essential elements of the offense beyond a reasonable doubt. See Jackson
v. Virginia, 443 U.S. 307, 319 (1979); Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim.
App. 2010) (plurality opinion); Pomier v. State, 326 S.W.3d 373, 378 (Tex.
App.—Houston [14th Dist.] 2010, no pet.). Although we consider everything presented at
trial, we do not reevaluate the weight and credibility of the evidence and substitute our
judgment for that of the fact finder. Williams v. State, 255 S.W.3d 742, 750 (Tex. Crim.
App. 2007). Because the jury is the sole judge of the credibility of witnesses and of the
weight given to their testimony, any conflicts or inconsistencies in the evidence are
resolved in favor of the verdict. Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim. App.
2000). Our review includes both direct and circumstantial evidence, as well as any
reasonable inferences that may be drawn from the evidence. Clayton v. State, 235 S.W.3d
772, 778 (Tex. Crim. App. 2007). Direct and circumstantial evidence are treated equally.
Id. If the record supports conflicting inferences, we presume that the trier of fact resolved
the conflicts in favor of the prosecution and therefore defer to that determination. Id.
A person commits an assault if that person intentionally, knowingly, or recklessly
causes bodily injury to another. Tex. Penal Code Ann. § 22.01(a). An assault is a third
degree felony if it is committed against a person the actor knows is a public servant while
the public servant is lawfully discharging an official duty. Id. § 22.01(b). Thus, to
convict appellant for assault of a public servant, the State had to prove that appellant (1)
intentionally, knowingly, or recklessly; (2) caused bodily injury; (3) to a person appellant
knew was a public servant; (4) while the public servant was lawfully discharging an
official duty. See id. § 22.01; see also Johnson v. State, 172 S.W.3d 6, 10–11 (Tex.
App.—Austin 2005, pet. ref‘d).
―A person acts intentionally, or with intent, with respect to the nature of his conduct
… when it is his conscious objective or desire to engage in the conduct or cause the result.‖
Tex. Penal Code Ann. § 6.03(a) (West 2011). A jury may infer intent from conduct and
the surrounding circumstances. Hernandez v. State, 819 S.W.2d 806, 810 (Tex. Crim.
8
Ohio App. 1991), overruled on other grounds by Fuller v. State, 829 S.W.2d 191 (Tex. Crim.
App. 1992). Direct evidence of the elements of the offense is not required. Hooper v.
State, 214 S.W.3d 9, 14 (Tex. Crim. App. 2007). Proof of a culpable mental state almost
invariably depends upon circumstantial evidence. Martin v. State, 246 S.W.3d 246, 263
(Tex. App.—Houston [14th Dist.] 2007, no pet.). Circumstantial evidence is as probative
as direct evidence in establishing the guilt of an actor. Hooper, 214 S.W.3d at 14–15.
The Texas Penal Code provides guidelines for when a correctional officer‘s use of
force is considered lawful. See Tex. Penal Code Ann. § 9.53 (West 2011). ―Knowing the
innate danger in maintaining a correctional facility, the legislature grants correctional
officers the right to use reasonable force against an inmate to maintain their own safety, the
safety of others, or the security of the prison as a whole.‖ Hall, 158 S.W.3d at 475.
Section 9.53 of the Penal Code provides:
An officer or employee of a correctional facility is justified in using force
against a person in custody when and to the degree the officer or employee
reasonably believes the force is necessary to maintain the security of the
correctional facility, the safety of other persons in custody or employed by
the correctional facility, or his own safety or security.
Tex. Penal Code Ann. § 9.53. If a correctional officer‘s use of force falls within this
definition, then he is ―lawfully discharging his official duties.‖ See Hall, 158 S.W.3d at
475.
Here, the jury could reasonably infer intent from appellant‘s conduct and the
surrounding circumstances. See Clayton, 235 S.W.3d at 778; Hernandez, 819 S.W.2d at
810. The record reflects that appellant refused to obey a clear and direct order to go to his
cell, while the remainder of the inmates complied with the order. When Jimenez and
Alexander confronted appellant in an attempt to get him to comply, appellant lashed out
physically toward Jimenez. Jimenez testified that while escorting appellant to his cell,
appellant was ―[v]ery aggressive, yelling and using abusive language.‖ Jimenez moved
appellant to the back wall of his cell, facing the back wall and instructed him to remain in
9
that position until the officers had exited. At that point, Jimenez released appellant‘s
arms. Immediately upon the release of his arms, appellant turned and threw a punch at
Jimenez‘s face with his closed fist. The jury could conclude from this evidence that it was
appellant‘s conscious objective or desire to cause bodily injury to Jimenez. See Tex.
Penal Code Ann. §§ 6.03(a), 22.01(a).
Additionally, the jury could find from the testimony of Jimenez, Alexander, and
Duran, that Jimenez was lawfully discharging an official duty when appellant struck him.
See Tex. Penal Code Ann. § 22.01(b); Wesbrook, 29 S.W.3d at 111. Both Jimenez and
Alexander testified that it is standard procedure to restrain an inmate after a physical
altercation with an officer. Both stated that they followed this procedure in restraining
appellant after appellant bumped chests with Jimenez. Duran testified that when an
inmate refuses to comply with an order to go to his cell, the protocol is to physically escort
that inmate to his cell. Jimenez and Alexander also testified that it was standard procedure
to escort an uncooperative inmate into his cell, place him at the back of the cell facing the
wall, and instruct him not to move. Both testified that this procedure was followed in
taking appellant to his cell. Further, Jimenez and Alexander testified that the procedures
followed are in place to maintain a safe environment for both the officers and the inmates.
There is no evidence within the record that Jimenez either departed from his duties or was
criminally or tortiously abusing his status as a public servant at the time of the assault. See
Hall, 158 S.W.3d at 475. The jury could conclude from this evidence that Jimenez was
lawfully discharging an official duty when appellant struck him. See id.; Tex. Penal Code
Ann. § 9.53.
Examining all of the evidence in the light most favorable to the verdict, a rational
trier of fact could have found the essential elements of the offense beyond a reasonable
doubt. See Jackson, 443 U.S. at 319; Brooks, 323 S.W.3d at 895; Pomier, 326 S.W.3d at
378.
We overrule appellant‘s first issue.
10
PROPORTIONALITY OF THE SENTENCE
In his second issue, appellant argues that the sentence is grossly disproportionate to
the offense committed and thus violates the Eighth Amendment. See U.S. CONST. amend
VIII.
Almost every right, constitutional or statutory, may be waived by failing to object.
Broxton v. State, 909 S.W.2d 912, 918 (Tex. Crim. App. 1995); Smith v. State, 721 S.W.2d
844, 855 (Tex. Crim. App. 1986). Specifically, an objection based on cruel and unusual
punishment must be made in the trial court or it is waived on appeal. Curry v. State, 910
S.W.2d 490, 497 (Tex. Crim. App. 1995); see also Battle v. State, 348 S.W.3d 29, 30–31
(Tex. App.—Houston [14th Dist.] 2011, no pet.). After announcing the eleven-year
sentence, the trial court asked if appellant had anything to say. Appellant made no
objection to the sentence imposed and instead responded ―[n]o, Your Honor.‖ Moreover,
appellant did not file a motion for new trial objecting to his sentence. Appellant failed to
preserve his complaint for appellate review. See Curry, 910 S.W.2d at 497; Battle,
S.W.3d at 31.
Despite having failed to preserve error, appellant contends that his sentence is
grossly disproportionate to the crime when compared to the gravity of the offense.
Criminal sentences must be proportionate to the crime and even a sentence within the
statutorily prescribed range may violate the Eighth Amendment. See Solem v. Helm, 463
U.S. 277, 290, 103 S. Ct. 3001, 77 L. Ed. 2d 637 (1983); Baldridge v. State, 77 S.W.3d 890,
893 (Tex. App.—Houston [14th Dist.] 2002, pet. ref‘d). The principle is rarely applied to
invalidate a sentence for a term of years. See Lockyer v. Andrade, 538 U.S. 63, 73, 123 S.
Ct. 1166, 155 L. Ed. 2d 144 (2003).
In conducting an Eighth Amendment proportionality analysis, we first make a
threshold comparison of the gravity of the offense against the severity of the sentence.
Harris v. State, 204 S.W.3d 19, 29 (Tex. App.—Houston [14th Dist.] 2006, pet. ref‘d);
Baldridge, 77 S.W.3d at 893; see also Harmelin v. Michigan, 501 U.S. 957, 1004–06, 111
11
S. Ct. 2680, 115 L. Ed. 2d 836 (1991) (Kennedy, J., plurality op.). Only upon determining
that the sentence is grossly disproportionate to this particular crime do we then consider:
(a) the sentences for similar crimes in the same jurisdiction; and (b) the sentences for the
same crime in other jurisdictions. Baldridge, 77 S.W.3d at 893; see also Harmelin, 501
U.S. at 1005.
Even if appellant had preserved error, we cannot conclude that his sentence is
disproportionate to the offense charged. First, we must compare the gravity of this
offense against the severity of the sentence. See Harris, 204 S.W.3d at 29. Generally,
punishment assessed within the statutory limits is not considered cruel and unusual
punishment. Jackson v. State, 680 S.W.2d 809, 814 (Tex. Crim. App. 1984); Samuel v.
State, 477 S.W.2d 611, 614 (Tex. Crim. App. 1972); see also Baldridge, 77 S.W.3d at
893–94 (―It has long been recognized that if the punishment assessed is within the range of
punishment established by the Legislature under its constitutional authority, there is no
violation of the state constitutional provisions against cruel and unusual punishment.‖).
Appellant‘s conduct in committing an assault of a public servant is a third degree
felony and punishable by two to ten years‘ imprisonment. See Tex. Penal Code Ann. §§
12.34, 22.01 (West 2011). However, appellant‘s offense was not based upon this conduct
alone. Appellant‘s sentence was based upon his status as a repeat felony offender. See
id. § 12.42. He pled ―true‖ to the felony enhancement paragraph, elevating the range of
punishment to two to twenty years and a fine not to exceed $10,000. See id. §§ 12.33,
12.42, 22.01, 22.011(a)(2) (West 2011). ―Under a recidivist statute, a sentence is ‗based
not merely on that person‘s most recent offense but also on the propensities he has
demonstrated over a period of time during which he has been convicted of and sentenced
for other crimes.‘‖ Hicks v. State, 15 S.W.3d 626, 632 (Tex. App.—Houston [14th Dist.]
2000, pet. ref‘d) (quoting Rummel v. Estelle, 445 U.S. 263, 284, 100 S. Ct. 1133, 1144, 63
L. Ed. 2d 382 (1980)); McGruder v. Puckett, 954 F.2d 313, 316 (5th Cir. 1992). In
applying a recidivist statute, the State is not required to treat a defendant as if an offense
12
was his first. Hicks, 15 S.W.3d at 632 (citing Rummel, 445 U.S. at 284, 100 S. Ct. at
1144). Instead, the State is entitled to place upon the defendant ―the onus of one who is
simply unable to bring his conduct within the social norms prescribed by the criminal law
of the State.‖ Rummel, 445 U.S. at 284, 100 S. Ct. at 1144; Hicks, 15 S.W.3d at 632.
Considering this particular offense, evidence showed that appellant violated a direct
order from a correctional officer—an order the remainder of the inmates followed without
incident. Additionally, there is evidence that appellant lashed out physically at Jimenez
twice during this altercation, causing bodily injury to that officer and breaking specific
rules against touching an officer. Ultimately, it was only when appellant was threatened
with a taser that appellant stopped resisting the officers and complied with their orders.
Even after appellant was placed in a padded cell, he was still threatening to harm both
Jimenez and Alexander. Evidence presented also indicated that appellant told his cousin
that he ―beat up‖ an officer, and told another officer that he had ―already put one of y‘all in
the hospital.‖
The State enhanced appellant‘s punishment range by proving that appellant was
previously convicted of a felony offense. See Rummel, 445 U.S. at 284, 100 S. Ct. at
1144; Hicks, 15 S.W.3d at 632. Appellant was sentenced to eleven years—only one year
above the maximum penalty he could have received if his punishment had not been
enhanced by the prior felony conviction. See Tex. Penal Code Ann. §§ 12.33, 12.34.
This sentence falls well within the statutory limits. See Tex. Penal Code Ann. §§ 12.33,
12.42.
Given the gravity of appellant‘s crime, we cannot conclude that his sentence is
grossly disproportionate to this particular offense. 8 Under these circumstances, we
8
In similar situations, other defendants have been punished severely. See Hall, 158 S.W.3d at
471 (defendant sentenced to ninety-nine years for assaulting a correctional officer by punching him in
the face with such force it knocked the officer to the ground, at which point other inmates joined in the
assault on the officer resulting in a number of serious injuries); Hills v. State, No. 03-09-00166-CR, 2010
WL 2330310 (Tex. App.—Austin June 11, 2010, pet. dism‘d) (mem. op., not designated for
13
conclude that the sentence imposed in this case does not run afoul of the federal prohibition
against cruel or unusual punishment.
We overrule appellant‘s second issue.
CONCLUSION
Having overruled both of appellant‘s issues, we affirm the judgment of the trial
court.
_
/s/ Sharon McCally
Justice
Panel consists of Chief Justice Hedges and Justices Christopher and McCally.
Do Not Publish — TEX. R. APP. P. 47.2(b).
publication) (defendant sentenced to eight years for punching correctional officer in the chest); Lee v.
State, No. 13-09-00550-CR, 2010 WL 1919504 (Tex. App.—Corpus Christi May 13, 2010, no pet.)
(mem. op., not designated for publication) (defendant sentenced to twenty-five years for punching a
correctional officer as many as three times); see also Harris, 204 S.W.3d at 29 (upholding sentence of
twenty-five years for DWI conviction where no person or property was harmed but sentenced was
enhanced by five prior DWI convictions—two of which were felonies).
14