Michelle Andrew v. State ( 2002 )


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  •                                                NO. 07-01-0465-CR
    IN THE COURT OF APPEALS
    FOR THE SEVENTH DISTRICT OF TEXAS
    AT AMARILLO
    PANEL E
    DECEMBER 9, 2002
    ______________________________
    MICHELLE ANDREW, APPELLANT
    V.
    THE STATE OF TEXAS, APPELLEE
    _________________________________
    FROM THE 137TH DISTRICT COURT OF LUBBOCK COUNTY;
    NO. 96-423,104; HONORABLE CECIL G. PURYEAR, JUDGE
    _______________________________
    Before QUINN and REAVIS, JJ. and BOYD, S.J.*
    Upon a plea of not guilty, appellant Michelle Andrew was convicted by a jury of
    aggravated assault with a deadly weapon and punishment was assessed at 20 years
    confinement. By 15 issues, appellant contends (1) the evidence was legally and factually
    insufficient to support the jury’s finding she used a deadly weapon during the commission of
    the offense; (2) she was denied effective assistance of counsel; (3) her 20-year sentence
    *
    Joh n T . Boyd, Chief Justice (Re t.), Seventh Court of A ppe als, sitting by ass ignm ent.
    constitutes grossly disproportionate or cruel and unusual punishment; (4) the trial court erred
    in admitting evidence in violation of TEX . R. EVID . 401 and 404(b); and (5) the trial court abused
    its discretion in failing to hold an evidentiary hearing on her amended motion for new trial.
    Based upon the rationale expressed herein, we affirm.
    On the evening of August 8, 1996, appellant accosted the victim while they were
    shopping at a local Wal-Mart store. After a brief exchange of “words,” the two women, who
    were not previously acquainted, parted and proceeded to separate aisles, but appellant
    continued to shout obscenities directed at the victim. A few minutes later, the two women met
    again in a main aisle of the store where appellant threatened bodily injury to the victim with a
    sheathed knife. Several Wal-Mart employees observed the exchange and were successful
    in dissuading appellant from committing any actual injury. Wal-Mart employees called the
    police and escorted the victim to an office to await their arrival. When appellant completed her
    shopping and departed the store a Wal-Mart employee followed appellant to her vehicle,
    where he obtained her license plate information. After a police investigation, appellant was
    arrested. Following a jury trial, appellant was convicted of aggravated assault with a deadly
    weapon and sentenced to 20 years confinement. We consider appellant’s points of error in
    logical rather than sequential order.
    By her first two points of error, appellant contends the evidence is legally and factually
    insufficient to support the jury’s finding that she used a deadly weapon during the commission
    of the offense. We disagree. When both the legal and factual sufficiency of the evidence are
    challenged, we must first determine whether the evidence is legally sufficient to support the
    2
    verdict. Clewis v. State, 
    922 S.W.2d 126
    , 133 (Tex.Cr.App. 1996). It is a fundamental rule
    of criminal law that one cannot be convicted of a crime unless it is shown beyond a reasonable
    doubt that the defendant committed each element of the alleged offense. U.S. CONST . amend.
    XIV; TEX . CODE CRIM . PROC . ANN . art. 38.03 (Vernon Supp. 2003); TEX . PEN . CODE ANN . § 2.01
    (Vernon 1994). In conducting a legal sufficiency review, we must determine whether, after
    viewing the evidence in the light most favorable to the prosecution, any rational trier of fact
    could have found the essential elements of the crime beyond a reasonable doubt. Jackson
    v. Virginia, 
    443 U.S. 307
    , 318, 
    99 S. Ct. 2781
    , 2789, 
    61 L. Ed. 2d 560
    , 573 (1979); Geesa v.
    State, 
    820 S.W.2d 154
    , 157 (Tex.Cr.App. 1991), overruled on other grounds, Paulson v. State,
    
    28 S.W.3d 570
    , 573 ( Tex.Cr.App. 2000). As an appellate court, we may not sit as a thirteenth
    juror, but must uphold the jury's verdict unless it is irrational or unsupported by more than a
    mere modicum of evidence. Moreno v. State, 
    755 S.W.2d 866
    , 867 (Tex.Cr.App. 1988).
    After conducting a legal sufficiency review under Jackson, we may proceed with a
    factual sufficiency review. 
    Clewis, 922 S.W.2d at 133
    . The Court of Criminal Appeals has
    directed us to ask whether a neutral review of all the evidence, both for and against the finding,
    demonstrates that the proof of guilt is so obviously weak as to undermine confidence in the
    fact finder’s determination, or the proof of guilt, although adequate if taken alone, is greatly
    outweighed by contrary proof. Johnson v. State, 
    23 S.W.3d 1
    , 11 (Tex.Cr.App. 2000)
    (adopting complete civil factual sufficiency formulation); see also King v. State, 
    29 S.W.3d 556
    ,
    563 (Tex.Cr.App. 2000). Accordingly, we will reverse the fact finder’s determination only if a
    manifest injustice has occurred. 
    Johnson, 23 S.W.3d at 12
    . In conducting this analysis, we
    3
    may disagree with the jury’s determination, even if probative evidence supports the verdict,
    but must avoid substituting our judgment for that of the fact finder. See Santellan v. State, 
    939 S.W.2d 155
    , 164 (Tex.Cr.App. 1997).
    Because a knife is not a deadly weapon per se, the State was required to prove that,
    in the manner of its use or intended use, it was capable of causing death or serious bodily
    injury. TEX . PEN . CODE ANN . § 1.07(a)(17)(B) (Vernon 1994). In addressing the issue of
    manner of or intended use of knives, the Court of Criminal Appeals has stated
    [i]nstead the statute provides that a deadly weapon is "anything that in the
    manner of its use or intended use is capable of causing death or serious bodily
    injury." § 1.07(a)(17)(B) (emphasis in original). The provision's plain language
    does not require that the actor actually intend death or serious bodily injury; an
    object is a deadly weapon if the actor intends a use of the object in which it
    would be capable of causing death or serious bodily injury. The placement of
    the word "capable" in the provision enables the statute to cover conduct that
    threatens deadly force, even if the actor has no intention of actually using deadly
    force.
    McCain v. State, 
    22 S.W.3d 497
    , 503 (Tex.Cr.App. 2000). Therefore an object is a deadly
    weapon if the actor intends a use of the object in which it would be capable of causing death
    or serious bodily injury." 
    Id. By her
    testimony at the guilt-innocence phase, appellant admitted she carried a knife
    during the incident. Although the actual knife used in the assault was not produced at trial,
    witnesses testified that a knife produced by the State for demonstrative purposes was actually
    smaller than the one appellant used in the assault. Three separate Wal-Mart employees and
    the victim testified appellant had a sheathed knife and physically threatened the victim with it
    4
    from a close proximity while simultaneously verbally indicating intent to cut the victim.
    Appellant argues there was not sufficient evidence of what the sheath contained, possibly to
    attack whether the knife was "used or exhibited" during the assault. The Court addressed
    similar facts in McCain:
    Had the knife been completely concealed by appellant's clothing, additional facts
    would have been needed to establish that the butcher knife was used. But the
    knife was partially exposed, and from that exposure, the factfinder could
    rationally conclude that the knife was exhibited during the criminal transaction,
    or at least, that its presence was used by appellant to instill in the complainant
    apprehension, reducing the likelihood of resistance during the encounter.
    
    Id. Like McCain,
    here, witnesses testified a portion of the knife blade was protruding from the
    sheath. For legal sufficiency purposes, the question is whether, "after viewing the evidence
    in the light most favorable to the prosecution, any rational trier of fact could have found the
    essential elements of the crime beyond a reasonable doubt." 
    Jackson, 443 U.S. at 319
    . In
    the present case the evidence adduced at trial was legally sufficient for a fact finder to
    conclude that the "intended use" of the knife was for it be capable of causing death or serious
    bodily injury, and that appellant used or exhibited the knife. Hence, the evidence was legally
    sufficient to show appellant used or exhibited a deadly weapon under the circumstances.
    Moreover, considering appellant’s admission and other factors, we are unable to conclude that
    the evidence of guilt is so obviously weak as to undermine confidence in the fact finder’s
    determination. Accordingly, the evidence was also factually sufficient to show appellant used
    or exhibited a deadly weapon under the circumstances. Points of error one and two are
    overruled.
    5
    Amended Motion for New Trial Points
    By point of error eight, appellant contends the trial court abused its discretion in failing
    to hold an evidentiary hearing on her amended motion for new trial supported by affidavit. By
    point of error seven, she contends trial counsel rendered ineffective assistance by the
    commission or omission of the acts set out in her affidavit attached to her amended motion
    for new trial. We disagree.
    Appellant was sentenced on October 31, 2001, and timely filed a motion for new trial
    on November 5, 2001. Because no ruling was made on the motion within 75 days, it became
    overruled as a matter of law on January 14, 2002 in accordance with TEX . R. APP. P. 21.8(c).
    When appellant’s motion for leave to file an amended motion for new trial was granted on
    January 9, 2002, she filed an amended motion for new trial on the same day.
    Appellant’s contentions address matters she contends were presented by her amended
    motion for new trial, not her original motion for new trial. However, she did not file her
    amended motion for new trial within 30 days as required by T EX . R. APP. P. 21.4; see also
    Prudhomme v. State, 
    28 S.W.3d 114
    , 118 (Tex.App.–Texarkana 2000, no pet.). As a result,
    the untimely filed amended motion and the affidavit in support thereof were not before the trial
    court. Accordingly, points of error seven and eight present nothing for review and are
    therefore overruled. See Mallet v. State, 
    9 S.W.3d 856
    , 865 (Tex.App.–Fort Worth 2000, no
    pet.).
    6
    Ineffective Assistance Of Counsel Claims
    By points of error three and four, appellant contends she was denied effective
    assistance of counsel in violation of the United States and Texas Constitutions, and by point
    of error five claims this occurred at the punishment phase of trial. By point of error six, she
    contends trial counsel rendered ineffective assistance by opening the door to extraneous bad
    acts at the guilt-innocence and punishment phases of trial and by point of error twelve,
    appellant contends counsel’s failure to object to the State submitting a supplemental notice
    of intent to use evidence of extraneous offenses less than five days prior to the trial constituted
    ineffective assistance. We disagree.
    We review a claim of ineffective assistance of counsel by the standard set forth in
    Strickland v. Washington, 
    466 U.S. 668
    , 
    104 S. Ct. 2052
    , 
    80 L. Ed. 2d 674
    (1984). Under
    Strickland, a defendant must establish that (1) counsel’s performance was deficient (i.e., fell
    below an objective standard of reasonableness), and (2) there is a reasonable probability that
    but for counsel’s deficient performance, the result of the proceeding would have been
    different, a reasonable probability being a probability sufficient to undermine confidence in the
    outcome. Hernandez v. State, 
    726 S.W.2d 53
    , 55 (Tex.Cr.App. 1986).
    The assessment of whether a defendant received ineffective assistance of counsel is
    based on the facts of each case. Ex Parte Scott, 
    581 S.W.2d 181
    , 182 (Tex.Cr.App. 1979).
    Any allegation of ineffectiveness must be firmly founded in the record and the record must
    affirmatively demonstrate the alleged ineffectiveness. McFarland v. State, 
    928 S.W.2d 482
    ,
    7
    500 (Tex.Cr.App. 1996), cert. denied, 
    519 U.S. 1119
    , 
    117 S. Ct. 966
    , 
    136 L. Ed. 2d 851
    (1997).
    An appellate court looks to the totality of the representation and the particular circumstances
    of each case in evaluating counsel’s performance. Ex Parte Felton, 
    815 S.W.2d 733
    , 735
    (Tex.Cr.App. 1991). However, it is possible that a single egregious error of omission or
    commission by counsel constitutes ineffective assistance. Thompson v. State, 
    9 S.W.3d 808
    ,
    813 (Tex.Cr.App. 1999). After proving error, a defendant must also affirmatively demonstrate
    prejudice. 
    McFarland, 928 S.W.2d at 500
    . Any judicial review must be highly deferential to
    trial counsel and avoid the deleterious effects of hindsight. Ingham v. State, 
    679 S.W.2d 503
    ,
    509 (Tex.Cr.App. 1984); see also Ex Parte Kunkle, 
    852 S.W.2d 499
    , 505 (Tex.Cr.App. 1993).
    A strong presumption exists that defense counsel's conduct falls within a wide range of
    reasonable representation. 
    Strickland, 466 U.S. at 690
    ; Dewberry v. State, 
    4 S.W.3d 735
    , 757
    (Tex.Cr.App. 1999), cert. denied, 
    529 U.S. 1131
    , 
    120 S. Ct. 2008
    , 
    146 L. Ed. 2d 958
    (2000).
    In summary, by points of error three, four, five, six and twelve 1 appellant alleges counsel
    was ineffective in the following particulars:
    (1) failing to ask questions during voir dire on punishment issues specific to
    appellant’s case.
    (2) opening the door during the guilt-innocence stage of the trial to extraneous
    bad acts of appellant in the use of her knife.
    1
    Discussion of appellant’s remaining ineffective assistance claim in point of error
    eleven will be deferred to the discussion of points of error nine and ten, below.
    8
    (3) opening the door during the punishment stage of the trial to extraneous bad
    acts and matters in answer to appellant’s statement that she had never hurt
    anybody in her life.
    (4) failing to object to the State submitting a supplemental notice of intent to use
    evidence of extraneous offenses less than five days prior to trial. However,
    here, appellant does not reference the record which would demonstrate that
    prejudice or harm resulted or cite authorities supporting her argument that had
    an objection been made, it would not have been subject to trial court’s
    discretion.
    Regarding her first claim that counsel was ineffective for not asking questions during
    voir dire, because appellant originally elected to have her punishment fixed by the court, if
    convicted, questions during voir dire would have been irrelevant. For this reason, the record
    does not affirmatively demonstrate ineffectiveness of counsel.
    Appellant’s second claim alleges that trial counsel was ineffective because she “opened
    the door” during the guilt-innocence stage to appellant’s extraneous bad acts in the use of a
    knife. Also, by her third claim, she argues that counsel was ineffective during the punishment
    phase for “opening the door” as to whether she had ever hurt anyone. Counsel’s action in
    “opening the door” to matters during trial is not ineffective assistance per se. Here, appellant
    elected to testify at both phases of the trial and although she denied any assault, she admitted
    that on the occasion in question, she did possess the knife. Accordingly, appellant presents
    nothing to overcome the presumption that counsel’s action was sound trial strategy. Jackson,
    
    877 S.W.2d 768
    , 771 (Tex.Cr.App. 1994).
    By her fourth claim, appellant argues that trial counsel was ineffective for failing to
    object to the State’s filing a supplemental notice of intent to use evidence of extraneous
    9
    offenses less than five days prior to trial. The State’s supplemental notice was filed with the
    clerk and faxed to appellant’s counsel on October 24, 2001, but the trial did not commence
    until October 30. Because the record here fails to show why appellant’s trial counsel did not
    object to the supplemental notice, appellant has failed to rebut the presumption that this was
    a reasonable decision. Thompson v. State, 
    9 S.W.3d 808
    , 814 (Tex.Cr.App. 1999). For all
    of the reasons explained above, appellant’s points of error three, four, five, six and twelve are
    overruled.
    Evidence Rules 404(b), 401and 403
    By points of error nine and ten, appellant contends the trial court erred in admitting
    evidence contrary to Rules 404(b) and 401 of the Texas Rules of Evidence. Also, by point
    eleven, she contends that trial counsel rendered ineffective assistance by failing to make a
    proper rule 403 objection to the evidence material to her points nine and ten. We disagree.
    A timely and reasonably specific objection is required to preserve error for appellate
    review. TEX . R. APP. P. 33.1(a); Butler v. State, 
    872 S.W.2d 227
    , 236 (Tex.Cr.App. 1994), cert.
    denied, 
    513 U.S. 1157
    , 
    115 S. Ct. 1115
    , 
    130 L. Ed. 2d 1079
    (1995). Where the alleged error
    relates to the admission of evidence, a timely objection must be made stating the specific
    ground of objection.    TEX . R. EVID . 103(a)(1); Higgins v. State, 
    924 S.W.2d 739
    , 745
    (Tex.App.–Texarkana 1996, pet. ref’d ). In addition, the objection at trial must comport with
    the error complained of on appeal. Goff v. State, 
    931 S.W.2d 537
    , 551 (Tex.Cr.App. 1996),
    cert. denied, 
    520 U.S. 1171
    , 
    117 S. Ct. 1438
    , 
    137 L. Ed. 2d 545
    (1997).
    10
    Whether evidence is admissible is within the sound discretion of the trial court. Jackson
    v. State, 
    575 S.W.2d 567
    (Tex.Cr.App.1979). Therefore, the standard of review for admission
    or exclusion of evidence is abuse of discretion. Erdman v. State, 
    861 S.W.2d 890
    , 893
    (Tex.Cr.App. 1993). A trial court does not abuse its discretion unless it has "acted arbitrarily
    and unreasonably, without reference to any guiding rules and principles." Breeding v. State,
    
    809 S.W.2d 661
    , 663 (Tex.App.–Amarillo 1991, pet. ref'd). As long as the trial court's ruling
    was within the "zone of reasonable disagreement," there is no abuse of discretion and the trial
    court's ruling will be upheld. See Rachal v. State, 
    917 S.W.2d 799
    , 807 (Tex.Cr.App.1996),
    cert. denied, 
    519 U.S. 1043
    , 
    117 S. Ct. 614
    , 
    136 L. Ed. 2d 539
    (1996). But, if it cannot be
    concluded from common reasonable experience that the evidence has a tendency to make
    the existence of a fact of consequence more or less probable, then the trial court's decision
    was not within the zone of reasonable disagreement and it abused its discretion. 
    Id. "Relevant evidence"
    is evidence that has any tendency to make the existence of any
    fact that is of consequence to the determination of the action more probable or less probable
    than it would be without the evidence. TEX . R. EVID . 401. Although relevant, evidence may
    be excluded if its probative value is substantially outweighed by the danger of unfair prejudice,
    confusion of the issues, or misleading the jury, or by considerations of undue delay, or
    needless presentation of cumulative evidence. TEX . R. EVID . 403. Although evidence of other
    crimes, wrongs or acts is not admissible to prove the character of a person in order to show
    action in conformity therewith, it may be admissible for other purposes, such as proof of
    motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or
    11
    accident. Tex. R. Evid. 404(b). During the punishment phase of trial, article 37.07, section
    3(a) governs the admission of evidence. Therefore, the discretion to admit or exclude
    evidence is not absolute. Appellant complains of specific instances during the guilt-innocence
    and punishment phases of trial where she contends the trial court should have excluded
    evidence under Rules 401, 403, and 404(b).           The evidence admitted during the guilt-
    innocence and punishment phases will be treated separately.
    During the guilt-innocence phase, appellant contends the following evidence should
    have been excluded by the trial court:
    her interactions with investigating police
    an argument with neighbor
    incidents involving her dogs
    Appellant first contends that her pre-arrest interactions with the investigating officer
    should have been excluded. During cross-examination by the State, appellant was questioned
    about her pre-arrest interactions with the investigating officer, and counsel made a Rule 404
    objection, but was overruled. Appellant testified she was generally cooperative and offered
    a statement but the officer refused to take it. Later, the State offered the testimony of the
    investigating officer without objection, by which he related the intractability of appellant in
    cooperating with the investigation. The testimony of the officer was admitted without objection,
    in response to appellant’s version of events and is not contested here. Rather, appellant
    contends this should have been a forbidden area of inquiry on cross-examination originally.
    We disagree.
    12
    When a defendant testifies, she may not be cross-examined about any post-arrest
    silence, unless it is first established that a post-arrest inconsistent statement was made.
    Turner v. State, 
    719 S.W.2d 190
    , 193 (Tex.Cr.App.1986). However, the State is permitted
    to inquire into a defendant's pre-arrest silence. Harris v. State, 
    866 S.W.2d 316
    , 320
    (Tex.App.–San Antonio 1993, pet. ref’d) (citing Waldo v. State, 
    746 S.W.2d 750
    , 755
    (Tex.Cr.App.1988); Mowbray v. State, 
    788 S.W.2d 658
    , 666 (Tex.App.–Corpus Christi 1990,
    pet. ref'd), cert. denied, 
    498 U.S. 1101
    , 
    111 S. Ct. 999
    , 
    112 L. Ed. 2d 1082
    (1991); see also
    Jenkins v. Anderson, 
    447 U.S. 231
    , 238-39, 
    100 S. Ct. 2124
    , 2129-30, 
    65 L. Ed. 2d 86
    (1980)).
    The Court of Criminal Appeals stated in Waldo that "[p]rearrest silence is a constitutionally
    permissible area of inquiry." 
    Waldo, 746 S.W.2d at 755
    . Thus, allowing this inquiry did not
    constitute an abuse of discretion by the trial court.
    Next, appellant contends that the State’s cross-examination of her about an argument
    with a neighbor which occurred two days prior to the Wal-Mart incident was improper. In her
    direct testimony, appellant offered a defensive theory of self-defense, contending she was not
    an aggressive person, and that the neighbor’s complaints about the dogs were unjustified.
    Once again, the State responded with rebuttal testimony from the neighbor. Because
    appellant’s testimony tended to create a false impression concerning her credibility, the State
    was permitted to correct that false impression upon cross-examination. Ramirez v. State, 
    802 S.W.2d 674
    , 676 (Tex.Cr.App.1990).
    Appellant also complains of several instances during the punishment phase where she
    contends the trial court should have excluded evidence. The rules governing admission of
    13
    extraneous evidence during the punishment phase are relaxed, and extraneous matters may
    be admitted during the punishment phase so long as the trial court determines the evidence
    to be relevant. TEX . CODE CRIM . PROC . ANN . art. 37.07 §3(a)(1) (Vernon Supp. 2003). A
    review of the record from the punishment phase reveals that no evidence was admitted which
    was not relevant to the issue of appellant’s punishment, and thus there was no abuse of
    discretion by the trial court in admitting this evidence. Points of error nine and ten are
    overruled.
    By point of error eleven, appellant contends trial counsel rendered ineffective
    assistance by failing to make proper Rule 403 objections to the evidence she complains of in
    points of error nine and ten. Considering that the evidence was admissible as discussed
    above, the omission of additional objections was not ineffective representation. Moreover, the
    record does not reflect counsel’s reasoning for failing to object, and thus appellant’s ineffective
    assistance claim is not sufficiently founded in the record nor does it affirmatively demonstrate
    ineffectiveness. McFarland v. 
    State, 928 S.W.2d at 500
    . Point of error eleven is overruled.
    Cruel and Unusual Punishment
    By issues thirteen and fourteen, appellant contends her 20 year sentence is cruel and
    unusual punishment under the United States and Texas Constitutions, and by issue fifteen
    argues that the sentence violates the constitutional prohibition against grossly disproportionate
    sentences. We disagree. Appellant’s conviction for aggravated assault with a deadly weapon,
    a second degree felony, carries a penalty of two to 20 years confinement. TEX . PEN . CODE
    14
    ANN . § 12.33(a) and § 22.02(b) (Vernon 1994). A penalty imposed within the range of
    punishment established by the Legislature should not be disturbed on appeal. Nunez v. State,
    
    565 S.W.2d 536
    , 538 (Tex.Cr.App. 1978). Thus, appellant’s 20-year sentence does not
    constitute cruel and unusual punishment.
    An argument that punishment imposed is grossly disproportionate to the offense
    survives under the Eighth Amendment apart from any consideration of whether the
    punishment assessed is within the range established by statute. In our analysis, we are
    guided by the criteria set forth in Solem v. Helm, 
    463 U.S. 277
    , 290-92, 
    103 S. Ct. 3001
    , 
    77 L. Ed. 2d 637
    (1983). Those criteria are (1) the gravity of the offense and the harshness of the
    punishment; (2) the sentences imposed on other criminals in the same jurisdiction; and (3) the
    sentences imposed for the same offense in other jurisdictions. 
    Id. We first
    compare the
    gravity of the offense against the severity of the sentence in light of the harm caused or
    threatened to the victim or society and the culpability of the offender. Only if we determine that
    the sentence is grossly disproportionate to the offense do we consider the remaining two
    Solem factors. 
    Id. In the
    instant case, appellant was convicted by the jury of aggravated
    assault with a deadly weapon. Testimony was elicited that appellant brandished a sheathed
    knife and threatened bodily injury on not only this occasion, but others. Appellant was known
    to carry the weapon with her at all times, and neighbors feared for their own safety as well as
    for their children. Evidence indicated appellant’s inability to be a law-abiding citizen, including
    impeding the investigation of her crime, as well as a prior incident of resisting arrest.
    Considering appellant’s history and the gravity of the crime, we conclude her 20-year sentence
    15
    is not grossly disproportionate to the offense. Points of error thirteen, fourteen, and fifteen are
    overruled.
    Accordingly, the judgment is affirmed.
    Don H. Reavis
    Justice
    Do not publish.
    16