Way, John James v. State ( 2006 )

Affirmed and Memorandum Opinion filed May 25, 2006

Affirmed and Memorandum Opinion filed May 25, 2006.

In The

Fourteenth Court of Appeals

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NO. 14-04-01185-CR

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JOHN JAMES WAY, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 25th District Court

Colorado County, Texas

Trial Court Cause No. CR04-109

M E M O R A N D U M   O P I N I O N

Appellant entered a plea of guilty to the offense of theft.  On October 26, 2004, the jury sentenced appellant to confinement for two years in the State Jail Facility of the Texas Department of Criminal Justice and assessed a fine of $2,500.

In his sole point of error appellant claims the trial court erred in excluding testimony concerning his co-defendant=s sentence.  A trial court=s decision to exclude evidence is reviewed for an abuse of discretion.  Green v. State, 934 S.W.2d 92, 101‑02 (Tex. Crim. App.1996).  If the trial court=s evidentiary ruling is within the zone of reasonable disagreement, no abuse of discretion has occurred and the trial court=s ruling must be upheld.  Id.

After a defendant has been found guilty, evidence may be offered by the State and the defendant Aas to any matter the court deems relevant to sentencing.@ Tex. Code Crim. Proc. Ann. art. 37.07 ' 3(a)(1).  In order to determine what is Arelevant to sentencing,@ we look at what evidence would assist the jury in determining the appropriate punishment in a particular case, taking policy reasons into consideration. See Sunbury v. State, 88 S.W.3d 229, 232 (Tex. Crim. App. 2002).  Some of those policy reasons include, but are not limited to, giving complete information for the jury to tailor an appropriate sentence for a defendant, optional completeness, and admitting the truth in sentencing.  Id. at 233-34.  Evidence of the circumstances of the offense itself or the defendant himself is admissible at the punishment phase.  See Schielack v. State, 992 S.W.2d 639, 641 (Tex. App.CHouston [14th Dist.] 1999, pet. ref=d) (citing Stiehl v. State, 585 S.W.2d 716, 718 (Tex. Crim. App. 1979)).

Appellant complains the jury was not allowed to hear testimony that his co-defendant was sentenced to one year in state jail for the same crime.  Appellant asserts he is not arguing for proportionate sentences but for the fact finder to hear all of the relevant facts before making a sentencing decision.  However, appellant does not identify how that information is relevant absent proportionate sentences.  Most telling is the close of appellant=s argument stating, A[a]ppellant should not receive twice the time in state jail as his co-defendant for the same crime.@ Notwithstanding appellant=s assertions, his complaint is of the disproportionate sentence.

The sentence received by appellant=s co-defendant is not evidence concerning circumstances of either appellant or the offense.  Accordingly, the trial court=s decision to exclude the evidence was at least within the zone of reasonable disagreement and did not constitute an abuse of discretion.  Morever, the erroneous exclusion of evidence does not result in reversible error unless it affects a substantial right of the accused. See Tex. R. App. P. 44.2(b); Alexander v. State, 137 S.W.3d 127, 130 (Tex.App.‑Houston [1st Dist.] 2004, pet. ref'd).  As appellant concedes, Texas does not recognize a right to receive the same or similar sentence as a co-defendant.  See DeGarmo v. State, 691 S.W.2d 657, 663 (Tex. Crim. App. 1985), overruled on other grounds by Leday v. State, 983 S.W.2d 713, 725 (Tex. Crim. App.1998).  For these reasons, appellant=s issue is overruled and the judgment of the trial court is affirmed.

PER CURIAM

Judgment rendered and Memorandum Opinion filed May 25, 2006.

Panel consists of Justices Hudson, Fowler, and Seymore.

Do Not Publish C Tex. R. App. P. 47.2(b).