Buford Glen Whitehead v. State ( 2006 )

Opinion filed December 14, 2006

Opinion filed December 14, 2006

                                                                        In The

    Eleventh Court of Appeals

                                                                   __________

                                                          No. 11-05-00179-CR

                                                     __________

                             BUFORD GLEN WHITEHEAD, Appellant

                                                             V.

                                        STATE OF TEXAS, Appellee

                                              On Appeal from the 91st District Court

                                                          Eastland County, Texas

                                                Trial Court Cause No. CR-03-20,196

                                                                   O P I N I O N

Buford Glen Whitehead appeals his conviction by a jury of the offenses of bail jumping and failure to appear.  Finding that Whitehead had been finally convicted of two prior felony offenses as alleged in the indictment, the jury assessed his punishment at life imprisonment in the Texas Department of Criminal Justice, Institutional Division. In two issues, Whitehead contends (1) that his life sentence is violative of his rights as guaranteed by the Eighth Amendment of the United States Constitution and as guaranteed by Article I, section 13 of the Texas Constitution and (2) that the evidence is factually insufficient to support the finding that Whitehead did not have a reasonable excuse for his failure to appear in accordance with the terms of his release.

Whitehead contends in issue one that his life sentence is violative of his rights as guaranteed by the Eighth Amendment of the United States Constitution and as guaranteed by Article I, section 13 of the Texas Constitution.  A life sentence imposed under Texas habitual offender statutes does not constitute cruel and unusual punishment in violation of the Eighth Amendment of the United States Constitution.  Rummel v. Estelle, 445 U.S. 263, 285 (1980).  Whitehead primarily relies on the case of Solem v. Helm, 463 U.S. 277 (1983). As the court noted in Solem, it is distinguishable from Rummel because in Solem the defendant was sentenced to life with no possibility of parole, whereas Rummel was eligible for a reasonably early parole.  Id.  Whitehead makes no distinction between his situation and that of Rummel.  Nothing is presented for review with respect to Whitehead=s contention that the punishment violates the protections afforded to him under Article I, section 13 of the Texas Constitution inasmuch as he has presented no argument or authority establishing that this provision affords broader or greater protection than the Eighth Amendment of the United States Constitution.  Puga v. State, 916 S.W.2d 547, 550 (Tex. App.CSan Antonio 1996, no pet.).  We overrule issue one. 

Whitehead urges in issue two that the evidence is factually insufficient to support the finding that he did not have a reasonable excuse for his failure to appear in accordance with the terms of his release.  To determine if the evidence is factually sufficient, the appellate court reviews all of the evidence in a neutral light.  Watson v. State, 2006 WL 2956272, at *8 (Tex. Crim. App. Oct. 18, 2006) (overruling in part Zuniga v. State, 144 S.W.3d 477 (Tex. Crim. App. 2004)); Johnson v. State, 23 S.W.3d 1, 10-11 (Tex. Crim. App. 2000); Cain v. State, 958 S.W.2d 404, 407-08 (Tex. Crim. App. 1997); Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996).  Then, the reviewing court determines whether the evidence supporting the verdict is so weak that the verdict is clearly wrong and manifestly unjust or whether the verdict is against the great weight and preponderance of the conflicting evidence.  Watson, 2006 WL 2956272, at *8;  Johnson, 23 S.W.3d at 10-11.

It is undisputed that Whitehead failed to appear and that his father was dying of cancer. In fact, the reason that Whitehead had been out on bond was because the court delayed his sentence so that he could spend some time with his father who was dying.  Brenda Sue Robinson, Whitehead=s sister, testified that at the time Whitehead was spending this time with his parents he was very upset, distraught, and sad.  She said that he knew his father was dying, that he probably would never see his father alive again, and that his father knew that.  She said he also knew that his mother was going blind.  She acknowledged that her brother never told her that he was not going to go back to court at the time he was due to go back but told her that he knew he had to go back.  She testified that Whitehead told his mother that he did not turn himself in because he had to come home so that he could hug his father one last time.  She acknowledged that by not showing up in court her brother had put her parents Athrough pure hell.@ She indicated that he never expressed any fear that she, a registered nurse, would not take care of their parents. Robinson=s testimony established that Whitehead=s father was seriously ill at the time the offense for which Whitehead had been convicted was committed, at the time he entered his plea to the offense, and at the time he was released on bail so that he could spend time with his father.

Robert Rains, chief deputy of the Eastland County Sheriff=s Office, testified that he picked up Whitehead the day after he had been scheduled to appear after Whitehead called and requested that he do so.  While Deputy Rains did not recall telling Whitehead that he did not do anything that anyone else would not have done under the same circumstance, he indicated that, if he had made a statement like that, he would probably have told him that Ahe didn=t do anything that nobody didn=t expect him to do.@

We find that the evidence is not so weak that the verdict is clearly wrong and manifestly unjust and that the verdict is not against the great weight and preponderance of the evidence.  Consequently, the evidence is factually sufficient to support Whitehead=s conviction.   If the jury determined that Whitehead failed to appear because he was distraught over the failing health of his father or because he wanted to hug his father one last time, it could have reasonably determined that, since his father=s health condition was known at the time of his release and was in fact the reason for the release, Whitehead=s excuse did not constitute a reasonable excuse for failing to appear at the appropriate time when the release period was over.  We overrule issue two. 

The judgment is affirmed. 

PER CURIAM

December 14, 2006

Do not publish.  See Tex. R. App. P. 47.2(b).

Panel consists of: Wright, C.J.,

McCall, J., and Hill, J.^[1]

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^[1]John G. Hill, Former Justice, Court of Appeals, 2nd District of Texas at Fort Worth sitting by assignment.