Jonathan Laboriel-Guity A/K/A Jonathan Laborielguity v. State ( 2011 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-10-00175-CR
JONATHAN LABORIEL-GUITY APPELLANT
A/K/A JONATHAN LABORIELGUITY
V.
THE STATE OF TEXAS STATE
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FROM CRIMINAL DISTRICT COURT NO. 2 OF TARRANT COUNTY
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OPINION
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Appellant Jonathan Laboriel-Guity a/k/a Jonathan Laborielguity appeals
from a judgment convicting him of aggravated robbery with a deadly weapon. In
a single point, Appellant argues that the trial court abused its discretion by
sentencing him to thirty years‘ confinement. We will affirm.
Appellant entered an open plea of guilty to aggravated robbery with a
deadly weapon and requested the preparation of a pre-sentence investigation
report (PSI). The PSI was prepared, and the trial court conducted a punishment
hearing.
Andrea Franklin testified that she was employed as an account
representative for a staffing agency and that on July 10, 2009, she personally
delivered paychecks to a business located in Saginaw. As Franklin drove out of
the business‘s parking lot in her car, she observed Appellant, whom she
recognized as a temporary employee of one of her client companies, wave her
down. Franklin stopped, Appellant asked her for a ride to the gas station, and
Franklin agreed to give him a ride. Once Appellant was in Franklin‘s car, he
pulled out a knife with a ―big serrated saw blade,‖ put it to Franklin‘s throat, and
said, ―Don‘t move.‖ Franklin, however, fought back, screamed, and struggled
with Appellant as he tried to put a rag over her mouth and to wrestle her to the
back seat. Terrified, Franklin managed to exit the car and to run down the road,
but Appellant moved over to the car‘s driver‘s seat, ―came after‖ Franklin in the
car, and tried to run her down. Franklin jumped out of the way, and Appellant
crashed the car and ran off.
After the incident, Franklin noticed some rope on the car‘s floorboard that
she thought Appellant had brought with him. Franklin suffered cuts to her neck
and hands, busted lips, and a scrape on her face. Franklin testified that she had
not yet returned to work because she did not feel safe, that she had been
attending counseling, that she does not feel safe in ―social situations,‖ and that
the incident had ―changed [her] a lot.‖
2
Appellant testified that he acted out of desperation because he needed
money to pay for his son‘s surgery, that he did not intend to kill or hurt Franklin,
that he was attempting to return Franklin‘s car to her when he drove towards her,
and that he apologized to Franklin after exiting her car. Appellant said that he
had taken responsibility for his actions and he apologized to Franklin.
The trial court found Appellant guilty of aggravated robbery with a deadly
weapon and sentenced him to thirty years‘ confinement.
In one point, Appellant argues that the trial court abused its discretion by
sentencing him to thirty years‘ confinement because the trial court ―did not give
due consideration to [his] remorse and acceptance of responsibility‖ regarding
the offense. Appellant acknowledges that trial courts have discretion to impose
punishment within the prescribed range, but he cites Jackson v. State, 680
S.W.2d 809 (Tex. Crim. App. 1984), and argues that ―Jackson intimates that a
trial judge may abuse its discretion even if the punishment determination falls
within the range prescribed for a particular offense.‖
To preserve a complaint for our review, a party must have presented to the
trial court a timely request, objection, or motion that states the specific grounds
for the desired ruling if they are not apparent from the context of the request,
objection, or motion. Tex. R. App. P. 33.1(a)(1); Layton v. State, 280 S.W.3d
235, 238–39 (Tex. Crim. App. 2009).
Appellant did not assert an objection when the trial court sentenced him to
thirty years‘ confinement, nor did he file a motion for new trial challenging the
3
severity of his sentence. Consequently, Appellant failed to preserve this point for
appellate review. See Tex. R. App. P. 33.1(a)(1); Mercado v. State, 718 S.W.2d
291, 296 (Tex. Crim. App. 1986) (―As a general rule, an appellant may not assert
error pertaining to his sentence or punishment where he failed to object or
otherwise raise such error in the trial court.‖); Rodriguez v. State, 917 S.W.2d 90,
92 (Tex. App.—Amarillo 1996, pet. ref‘d) (reasoning that ―nothing is preserved for
review because appellant failed to raise the severity of his sentence when
punishment was assessed or in a new trial motion‖); Davis v. State, No. 02-04-
00132-CR, 2005 WL 627104, at *1 (Tex. App.—Fort Worth Mar. 17, 2005, pet.
ref‘d) (mem. op, not designated for publication) (holding that appellant failed to
preserve for appellate review point challenging his sentence).
Even if Appellant had preserved his point, it is unpersuasive. In a previous
memorandum opinion, this court stated of Jackson as follows:
In Jackson, the trial judge who assessed punishment did not have
access to the transcript of the testimony at the guilt-innocence phase
of trial, no evidence was elicited at the punishment hearing, and the
trial court sentenced appellant based solely on a pre-sentence
investigation report. ―The sentencing judge . . . was left with nothing
to base his determination as to punishment on except the naked fact
that appellant had been found guilty of the offense of sexual abuse
of a child.‖ ―[U]nder the limited facts of th[e] case,‖ the court of
criminal appeals held that the trial court abused its discretion by
determining the appellant‘s sentence in the absence of any facts or
evidence available to the court and upon which the court could have
relied in assessing punishment.
4
Sanders v. State, No. 02-07-00250-CR, 2008 WL 4601937, at *1 (Tex. App.—
Fort Worth Oct. 16, 2008, no pet.) (mem. op, not designated for publication)
(citations omitted).
Unlike the issue in Jackson, Appellant does not argue that the trial court
abused its discretion in sentencing him because it determined his sentence in the
absence of any facts or evidence.1 Instead, Appellant argues that his thirty-year,
―mid-range‖ sentence is too high because the trial court ―indicated a complete
lack of reliance on the Appellant‘s remorse and acceptance of responsibility.‖
Jackson is thus inapposite to the argument that Appellant raises in this appeal.
Aggravated robbery, a first degree felony, is punishable by imprisonment
for not more than ninety-nine years or less than five years. See Tex. Penal Code
Ann. § 12.32(a) (Vernon Supp. 2010), § 29.03(a)(2), (b) (Vernon 2003).
Appellant‘s punishment of thirty years therefore falls within the statutory range of
punishment for aggravated robbery. Appellant does not argue that his sentence
is grossly disproportionate to the offense he committed. See Ex parte Chavez,
213 S.W.3d 320, 323–24 (Tex. Crim. App. 2006) (stating that a punishment that
1
Indeed, when the trial court sentenced Appellant, it stated the following
based on the evidence presented at punishment:
The offense that you have pled guilty to is a horrific offense.
And you have basically destroyed the trust that Ms. Franklin has in
humanity. She was doing a job. She saw you. She, out of the
goodness of her heart decided to give you a ride and you took
advantage of it. And that is truly unfortunate because I don‘t think
she is ever going to trust anybody else. She has suffered
tremendous emotional distress from this.
5
falls within the legislatively prescribed range and is based upon the sentencer‘s
informed normative judgment is unassailable on appeal, subject only to ―a very
limited, ‗exceedingly rare,‘ and somewhat amorphous Eighth Amendment gross-
disproportionality review‖). Accordingly, we hold that the trial court did not abuse
its discretion by sentencing Appellant to thirty years‘ confinement. See Price v.
State, Nos. 02-09-00122-CR, 02-09-00123-CR, 2009 WL 4878714, at *1–2 (Tex.
App.—Fort Worth Dec. 17, 2009, pet. ref‘d) (mem. op., not designated for
publication) (addressing similar issue). We overrule Appellant‘s only point, and
we affirm the trial court‘s judgment.
BILL MEIER
JUSTICE
PANEL: DAUPHINOT, GARDNER, and MEIER, JJ.
DAUPHINOT, J. filed a concurring opinion.
PUBLISH
DELIVERED: January 13, 2011
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COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-10-00175-CR
JONATHAN LABORIEL-GUITY APPELLANT
A/K/A JONATHAN LABORIELGUITY
V.
THE STATE OF TEXAS STATE
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FROM CRIMINAL DISTRICT COURT NO. 2 OF TARRANT COUNTY
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CONCURRING OPINION
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I write separately because, although I agree with the result, I cannot
completely agree with the rationale of the majority for the reasons stated in my
concurring and dissenting opinion to the majority opinion in Kim v. State.1
Although appellate courts may suggest filing a motion for new trial in order
to provide a complete record when complaints such as ineffective assistance of
1
283 S.W.3d 473, 476–79 (Fort Worth 2009, pet. ref‘d) (Dauphinot, J.,
concurring and dissenting).
counsel are raised, criminal law, unlike civil law, does not require the filing of a
motion for new trial in order to preserve a complaint for appellate review. 2 I
therefore disagree with the majority‘s statement that an appellant in a criminal
case is required to file a motion for new trial in order to preserve a complaint for
appellate review.3 I also disagree that an appellant in a criminal case has any
ability to lodge an objection after a trial is concluded.
In the case now before this court, however, the trial court followed proper
procedure. As required by law,4 the trial court announced the sentence to be
imposed and asked Appellant Jonathan Laboriel-Guity a/k/a Jonathan
Laborielguity if there was any lawful reason why that sentence should not be
imposed, and Appellant stated that there was not. Appellant accepted the
sentence. This portion of a criminal trial is often referred to as the allocution
portion of the trial. Allocution is the common law right of a defendant in a criminal
trial, including a trial for criminal contempt, to ―present his personal plea to the
Court in mitigation of punishment before sentence is imposed.‖5 Although article
2
See Tex. R. App. P. 21.2 (―A motion for new trial is a prerequisite to
presenting a point of error on appeal only when necessary to adduce facts not in
the record.‖).
3
See majority op. at 3–4.
4
See Tex. Code of Crim. Proc. Ann. art. 42.07 (Vernon 2006).
5
McClintick v. State, 508 S.W.2d 616, 618 (Tex. Crim. App. 1974) (op. on
reh‘g) (noting that Green v. United States, 365 U.S. 301, 81 S. Ct. 653 (1961),
provides some of the history of common law allocution).
2
42.07 of the code of criminal procedure prohibits imposition of sentence only on
the grounds of prior pardon, incompetence to stand trial, or mistaken identity, it
still grants a defendant the opportunity to speak and to lodge any objection to the
sentence before it is pronounced.6 In interpreting article 42.07 as permitting a
defendant‘s common law right of allocution, we should look to the Texas Court of
Criminal Appeals‘s instruction regarding the effect of a statute on common law
rights:
It is well-established that, ordinarily, a statute must be
interpreted according to its plain meaning, no more and no less.
And, it is equally well-established that a statute must not be
interpreted as abrogating a principle of the common law unless such
overruling is clearly indicated, either by the express terms of the
statute or by necessary implication from the language used. This
second canon is based on the reasonable supposition that if the
Legislature intended to overrule a principle of the common law, then
it would have made its intent clear.7
In his concurring opinion in Breazeale v. State,8 Judge Clinton discussed
various procedural means available to contest an act or finding in the trial court:
The trial court having found that each appellant waived his
right to trial by jury, a plethora of procedural means was readily
available to contest that finding in the forum of the trial court. A
motion for new trial that the court ―has committed [a] material error
calculated to injure the rights of defendant‖ is a solid ground under
Article 40.03 and, if supported by the showing appellant now alleges
to be the case, granting a new trial would have placed the cause in
6
Tex. Code Crim. Proc. Ann. art. 42.07.
7
Enos v. State, 889 S.W.2d 303, 305 (Tex. Crim. App. 1994) (citations
omitted).
8
683 S.W.2d 446, 451 (Tex. Crim. App. 1984) (Clinton, J., concurring).
3
the same position as before any trial had been held. A motion in
arrest of judgment suggesting that ―judgment has not been legally
rendered against him‖ would lie under Article 41.01 and related
provisions of Chapter Forty One. More informally, at allocution
under 42.07, an accused could make it known that he had not
properly waived his right to trial by jury pursuant to Article 1.13.
Thereafter, a formal bill of exception to make the record disclose any
event or occurrence relevant to the issue of waiver was available
under Article 40.09, § 6(a). Even an objection to the record in
accordance with Article 40.09, § 7, would have it ―speak the truth‖
about any alleged failure to follow Article 1.13.9
Glaringly absent is any absolute requirement that a defendant object to an
empty bench or file a motion for new trial in order to preserve his complaint.
For these reasons, I cannot join the conscientious majority‘s rationale but
concur only in the result.
LEE ANN DAUPHINOT
JUSTICE
PUBLISH
DELIVERED: January 13, 2011
9
Id. at 452–53 (citations omitted).
4