Reuben E. Means v. State ( 2011 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-10-00198-CR
NO. 02-10-00199-CR
REUBEN E. MEANS APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM THE 213TH DISTRICT COURT OF TARRANT COUNTY
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OPINION
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I. Introduction and Background
Appellant Reuben E. Means was indicted for possession of more than one
but less than four grams of cocaine and evading arrest. See Tex. Health &
Safety Code Ann. §§ 481.102(3)(D), .115(a) (West 2010); Tex. Penal Code Ann.
§ 38.04(a) (West 2011). The indictment for possession of cocaine contained a
repeat offender notice. Appellant entered open pleas of guilty to both offenses,
and he pleaded true to the repeat offender notice. The trial court accepted
Appellant’s guilty pleas and ordered that a presentencing report (PSI) be
prepared. The trial court subsequently conducted a sentencing hearing, found
Appellant guilty of each offense, found the repeat offender allegation to be true,
and sentenced Appellant to eight years’ confinement on the possession
conviction and two years’ confinement on the evading arrest conviction. In two
issues on appeal, Appellant contends that the trial court abused its discretion
because his sentences are excessive and he should have been given probation.
We affirm.
II. Discussion
Appellant contends that his sentences constitute an abuse of the trial
court’s discretion because they are excessive and because the evidence
presented at the sentencing hearing showed that he could do well on probation.
Appellant acknowledges, however, that he failed to object to either sentence
when they were imposed and that although he complained about the length of his
sentences in his motions for new trial, he did not present either motion to the trial
court. See Tex. R. App. P. 21.6 (requiring defendant to present his motion for
new trial to trial court within ten days of filing); Kim v. State, 283 S.W.3d 473, 475
(Tex. App.—Fort Worth 2009, pet. ref’d) (holding failure to object to sentence at
time of imposition or complain of sentence in motion for new trial does not
preserve complaint for appellate review); Washington v. State, 271 S.W.3d 755,
756 (Tex. App.—Fort Worth 2008, pet. ref’d) (holding disproportionate sentence
complaint not preserved because appellant did not present his motion for new
trial to trial court). Because Appellant did not object to his sentences when they
were imposed or present his motions for new trial to the trial court, he failed to
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preserve his sentencing complaints for appellate review. See Tex. R. App. P.
21.6, 33.1(a); Kim, 283 S.W.3d at 475; Washington, 271 S.W.3d at 756.
Moreover, even if we were to reach the merits of Appellant’s complaint, his
sentences are well within the relevant statutory ranges of two to twenty years in
the state penitentiary for possession of cocaine and between 180 days and two
years’ confinement in a state jail facility for evading arrest. 1 See Tex. Penal
Code Ann. §§ 12.33(a), .35(a) (West 2011). And punishment imposed within the
statutory range is generally not subject to challenge for excessiveness. See Kim,
283 S.W.3d at 475–76 (stating punishment assessed was not excessive when
based on sentencer’s informed normative judgment and fell within the
legislatively prescribed range); Dale v. State, 170 S.W.3d 797, 799 (Tex. App.—
Fort Worth 2005, no pet.) (―Generally, punishment assessed within the statutory
limits is not excessive, cruel, or unusual punishment.‖). Although there is
testimony from the sentencing hearing by Appellant and his family that Appellant
was paralyzed in June 2009 and is confined to a wheelchair; that Appellant has
been diagnosed with post-traumatic stress disorder; that he is a good person
when taking his bipolar medication; and that he is making an effort to take his
1
Possession of more than one but less than four grams of a controlled
substance in penalty group one is a third-degree felony punishable by
confinement from two to ten years. See Tex. Health & Safety Code Ann. §
481.115(c); Tex. Penal Code Ann. § 12.34 (West 2011). But because of
Appellant’s prior felony conviction, the applicable sentencing range for
Appellant’s possession conviction was that of a second-degree felony, which is
two to twenty years’ confinement. See Tex. Penal Code Ann. §§ 12.33(a),
.42(a)(3) (West 2011).
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medication, reform himself, and be a law-abiding citizen, the trial court stated
when sentencing Appellant,
[T]he Court heard your testimony, but I can’t overlook the fact that
you’ve had plenty of experience with the criminal justice system.
And six – I believe it’s six. Yeah, six previous cases involving
possession or possession with intent to deliver a controlled
substance, that tells me you are a dope dealer. That tells me you
made your mind up that you want to be a dope dealer as opposed to
doing what your wife is doing, going to work every day. You chose
the easy way out. So that’s the road that you chose to travel on.
You give the Court very little alternative but to sentence you to
confinement. But I certainly hope that once you complete this
confinement, you will continue with your stated goal of being a
productive citizen.
Appellant could have been sentenced to as many as twenty years’
confinement for his possession conviction but instead received an eight-year
sentence. And although Appellant received the maximum sentence for evading
arrest, the sentence runs concurrently with his eight-year sentence. We overrule
both of Appellant’s issues. See Kim, 283 S.W.3d at 475–76.
III. Conclusion
Having overruled each of Appellant’s two issues, we affirm the trial court’s
judgments.
ANNE GARDNER
JUSTICE
PANEL: DAUPHINOT, GARDNER, and WALKER, JJ.
DAUPHINOT, J. filed a dissenting and concurring opinion.
PUBLISH
DELIVERED: August 4, 2011
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COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NOS. 02-10-00198-CR
02-10-00199-CR
REUBEN E. MEANS APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM THE 213TH DISTRICT COURT OF TARRANT COUNTY
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DISSENTING AND CONCURRING OPINION
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For the reasons stated in my concurrence to the majority opinion in
Laboriel-Guity v. State1 and in my concurring and dissenting opinion to the
majority opinion in Kim v. State,2 I dissent from the majority’s holding that
1
336 S.W.3d 754, 757–59 (Tex. App.—Fort Worth 2011, pet. ref’d)
(Dauphinot, J., concurring).
2
283 S.W.3d 473, 476–79 (Tex. App.—Fort Worth 2009, pet. ref’d)
(Dauphinot, J., concurring and dissenting).
Appellant failed to preserve his Eighth Amendment complaint. I join the alternate
holding that the sentences imposed did not violate the Eighth Amendment.
LEE ANN DAUPHINOT
JUSTICE
PUBLISH
DELIVERED: August 4, 2011
2