Lionel Simon Landry v. State ( 2014 )

In The
Court of Appeals
Ninth District of Texas at Beaumont
_________________
NO. 09-13-00501-CR
NO. 09-13-00502-CR
_________________
LIONEL SIMON LANDRY, Appellant
V.
THE STATE OF TEXAS, Appellee
__________________________________________________________________
On Appeal from the 252nd District Court
Jefferson County, Texas
Trial Cause Nos. 11-12964, 11-12965
__________________________________________________________________
MEMORANDUM OPINION
Appellant Lionel Simon Landry appeals from the revocation of his deferred
adjudication community supervision and imposition of sentence in two aggravated
assault cases. In both cases, Landry argues that the trial court erred by assessing an
excessive sentence, by punishing him for being a “drug addict,” and by arbitrarily
refusing to consider the entire range of punishment. We affirm the judgments of
the trial court.
1
I. Background
In cause numbers 11-12964 and 11-12965, Landry was charged by
indictment with aggravated assault, a second-degree felony. The indictment in each
case contained enhancement paragraphs alleging five prior felony convictions. On
April 16, 2012, Landry pled guilty to aggravated assault in both cases pursuant to a
plea bargain agreement. Landry also pled “true” in both cases to one enhancement
paragraph alleging a prior conviction for a second-degree felony. The trial court
found the evidence sufficient to find Landry guilty in each case, but deferred
further proceedings, placed Landry on community supervision for ten years, and
ordered Landry to pay a fine of $750 in each case.
Thereafter, the State filed a motion to revoke Landry’s unadjudicated
community supervision in both cases. Counts one and two of the motions to revoke
alleged that Landry violated the conditions of his community supervision by
committing the offense of possession of a controlled substance. During the
revocation hearing on January 7, 2013, Landry pled “true” to count one of the
State’s motion to revoke in each case. The trial court accepted Landry’s plea in
each case, but reset the sentencing portion of the hearing for six months to give
Landry an opportunity to show the trial court that he could comply with the terms
of his community supervision.
2
On August 12, 2013, the trial court resumed the hearing on the State’s
motion to revoke. During that hearing, the trial court agreed to withhold ruling on
the motion to revoke for an additional two months to again give Landry an
opportunity to show that he could comply with the terms of his community
supervision.
On October 17, 2013, the State filed a first amended motion to revoke
Landry’s unadjudicated probation in each case. Counts one and two of the
amended motions again alleged that Landry had violated the conditions of his
community supervision by committing the offense of possession of a controlled
substance; however, the amended motions added counts five and six, which alleged
that Landry had violated the conditions of his community supervision by
committing the additional offenses of misdemeanor theft and public intoxication,
respectively. On November 4, 2013, the trial court held a hearing on the State’s
amended motions to revoke. In cause number 12965, Landry pled “true” to counts
one, two, and six. The State then reminded the trial court that Landry had pled true
to count one in both cases at the January 7, 2013 revocation hearing. Accordingly,
in cause number 12964, the court had the record reflect that Landry had previously
entered a plea of “true” to count one. Landry then pled “true” to counts two and
six in cause number 12964. The trial court revoked Landry’s community
supervision, found him guilty of aggravated assault in each case, and sentenced
3
Landry to seventy-five years in prison in each case, with the sentences to run
concurrently. Landry timely filed a notice of appeal in each case.
Excessive Sentence
In his first point of error, Landry argues that the seventy-five year sentences
assessed by the trial court in cause numbers 11-12964 and 11-12965 were
excessive. We first address whether Landry properly preserved this complaint for
our review. To preserve error for appellate review, the complaining party must
present a timely and specific objection to the trial court and obtain a ruling. Tex.
R. App. P. 33.1(a). A criminal defendant’s failure to object with specificity to the
alleged excessiveness of his sentence at the time of sentencing or in a post-trial
motion waives any error for the purpose of appellate review. See Means v. State,
347 S.W.3d 873, 874 (Tex. App.—Fort Worth 2011, no pet.); Trevino v. State, 174
S.W.3d 925, 927-28 (Tex. App.—Corpus Christi 2005, pet. ref’d). The record
reflects that Landry did not object when the trial court pronounced his sentence in
either case. Further, Landry did not file a post-trial motion in either case
complaining of the alleged excessiveness of his sentence. We conclude, therefore,
that Landry has waived this complaint in both cases.
However, even if Landry had preserved his complaint about the length of his
sentences for appellate review, we conclude that Landry has failed to establish that
the sentences imposed by the trial court were excessive. As a general rule, “a
4
sentence that is within the range of punishment established by the Legislature will
not be disturbed on appeal.” Diamond v. State, 419 S.W.3d 435, 440 (Tex. App.—
Beaumont 2012, no pet.). An appellate court “rarely considers a punishment within
the statutory range for the offense excessive, unconstitutionally cruel, or unusual
under either Texas law or the United States Constitution.” Id. Landry pled guilty
in each case to aggravated assault, a second-degree felony. He also pled “true” in
each case to one enhancement paragraph alleging a prior conviction for a second-
degree felony. Landry’s plea of true to the enhancement paragraph in each case
raised the level of the offense from a second-degree felony to a first-degree felony.
See Tex. Penal Code Ann. § 12.42(b) (West Supp. 2014).1 The punishment range
for a first-degree felony is five to ninety-nine years or life and a fine of up to
$10,000. Id. § 12.32 (West 2011). Landry’s seventy-five year sentences, therefore,
clearly fall within the range of punishment for the enhanced aggravated assault
offenses of which Landry was convicted.
However, even when a sentence falls within the statutory range of
punishment, it may nevertheless be excessive in violation of the Eighth
Amendment if it is grossly disproportionate to the offense for which the defendant
1
Although the Legislature amended Section 12.42 of the Texas Penal Code
after the date of the alleged offense in each of Landry’s cases, we cite to the
current version of the statute because the subsequent amendments do not affect our
analysis in this appeal.
5
has been convicted. See Reynolds v. State, 430 S.W.3d 467, 471 (Tex. App.—San
Antonio 2014, no pet.); Jackson v. State, 989 S.W.2d 842, 846 (Tex. App.—
Texarkana 1999, no pet.). To make this determination, “[w]e initially make a
threshold comparison of the gravity of the offense against the severity of the
sentence and then ask whether the sentence is grossly disproportionate to the
offense.” Jackson, 989 S.W.2d at 846. If gross disproportionality is found, we
then compare the sentence to sentences received for similar crimes in this and other
jurisdictions. Id. In his brief, Landry makes no attempt to compare the gravity of
the aggravated assault offenses to the severity of the sentences imposed, and he
does not argue or point to any evidence in the record explaining how his sentences
are grossly disproportionate to the offenses for which he was convicted. Further,
there is no evidence in the record of sentences imposed for similar offenses in this
or other jurisdictions for which we can make a reliable comparison. See id. We
conclude, therefore, that Landry has failed to make a showing that his sentences
were grossly disproportionate to the offenses committed. See East v. State, 71
S.W.3d 774, 777 (Tex. App.—Texarkana 2002, no pet.). We overrule Landry’s
first point of error in both cases.
Punishment for Being a “Drug Addict”
Landry also argues that the trial court punished him for being a “drug
addict,” which, he contends, constitutes “cruel and unusual punishment” in
6
violation of the Eighth and Fourteenth Amendments to the United States
Constitution.” Landry’s brief contains no citations to the record supporting his
contention, and after an independent review of the record, we find no indication
that the trial court punished him for being a drug addict in either case. Further, as
noted above, Landry did not object to his sentences in either case at the time they
were imposed or in a motion for new trial. It is well-established that even
constitutional rights, including the right to be free from cruel and unusual
punishment, may be waived by the failure to raise a timely objection in the trial
court. See Rhoades v. State, 934 S.W.2d 113, 120 (Tex. Crim. App. 1996);
Castaneda v. State, 135 S.W.3d 719, 723 (Tex. App.—Dallas 2003, no pet.). By
failing to object in the trial court, Landry has waived his complaint. See Tex. R.
App. P. 33.1. Accordingly, we overrule this point of error.
Failure to Consider Full Range of Punishment
In his second point of error, Landry argues that the trial court violated his
right to due process by arbitrarily refusing to consider the entire range of
punishment for his offense. Landry contends that the trial court was not a fair and
impartial tribunal because the trial judge “berated” him during the revocation
hearing and sentenced him to the “maximum term” without considering a lesser
sentence and without considering the mitigating circumstances presented by
Landry. The State argues that Landry has not clearly demonstrated that the trial
7
court was biased or that it arbitrarily failed to consider the full punishment range.
We agree with the State.
The Due Process Clause of the Fourteenth Amendment provides that no
State may “deprive any person of life, liberty, or property, without due process of
law[.]” See U.S. CONST. amend. XIV, § 1. Similarly, the Texas Constitution
provides that “[n]o citizen of this State shall be deprived of life, liberty, property,
privileges or immunities . . . except by the due course of the law of the land.” Tex.
Const. art. I, § 19. “The touchstone of due process is fundamental fairness.” Euler
v. State, 218 S.W.3d 88, 91 (Tex. Crim. App. 2007). Accordingly, “[t]he
Constitutional mandate of due process requires a neutral and detached judicial
officer who will consider the full range of punishment and mitigating evidence.”
Buerger v. State, 60 S.W.3d 358, 363-64 (Tex. App.—Houston [14th Dist.] 2001,
pet. ref’d) (citing Gagnon v. Scarpelli, 411 U.S. 778, 786-87 (1973)). A trial court
denies a defendant due process by arbitrarily refusing to consider the entire range
of punishment for an offense. Ex parte Brown, 158 S.W.3d 449, 454, 456 (Tex.
Crim. App. 2005). Likewise, a trial court denies a defendant due process when it
refuses to consider mitigating evidence and imposes a predetermined punishment.
Buerger, 60 S.W.3d at 364. However, in the absence of a clear showing to the
contrary, a reviewing court must presume that the trial court was neutral and
detached in sentencing the defendant and considered the full range of punishment.
8
See Brumit v. State, 206 S.W.3d 639, 645 (Tex. Crim. App. 2006); Jaenicke v.
State, 109 S.W.3d 793, 796 (Tex. App.—Houston [1st Dist.] 2003, pet. ref’d) (op.
on reh’g).
In order to preserve appellate review of a complaint that the trial court
arbitrarily refused to consider the entire range of punishment, the defendant must
make a timely objection at the trial court level. See Tex. R. App. P. 33.1; Teixeira
v. State, 89 S.W.3d 190, 192 (Tex. App.—Texarkana 2002, pet. ref’d). “This rule
ensures that trial courts are provided an opportunity to correct their own mistakes
at the most convenient and appropriate time—when the mistakes are alleged to
have been made.” Hull v. State, 67 S.W.3d 215, 217 (Tex. Crim. App. 2002). In
the present case, the record does not reflect that Landry objected to the trial court’s
alleged failure to consider the full range of punishment at the trial court level.
Nevertheless, Landry argues that under the Texas Court of Criminal Appeals’s
decision in Ex parte Brown, he was not required to make a contemporaneous
objection because the evidence that the court failed to consider the full range of
punishment was ambiguous. See 158 S.W.3d at 453 & n.3. Even if we were to
assume that Landry’s contention is correct and that he was excused from the long-
standing rule that errors in sentencing are waived by the failure to object, we
conclude that the record does not support Landry’s argument that the trial court
arbitrarily refused to consider the entire range of punishment for his offense.
9
The record of the final revocation hearing reflects that the trial court heard
arguments from both the prosecutor and defense counsel before deciding to revoke
Landry’s community supervision and assess punishment. Specifically, the record
reflects that before making its decision, the trial court asked defense counsel for
comments regarding the appropriate disposition of Landry’s cases. Landry’s
attorney advised the trial court of several mitigating circumstances, including the
fact that Landry was gainfully employed by two different employers, that he had a
place to live, that his drug screens during probation had been negative, and that he
had been timely reporting to his probation officer. Based on these factors,
Landry’s attorney argued that the trial court should reinstate Landry’s community
supervision or, alternatively, that punishment should be assessed at the lower end
of the punishment range. The record, however, also reflects that the trial court
heard argument from the State and reviewed evidence of several aggravating
factors, including Landry’s history of prior felony convictions and his continued
criminal behavior while on probation. Specifically, the record reflects that prior to
being placed on deferred adjudication probation for the two underlying felony
offenses, Landry had five prior felony convictions, including three second-degree
felony convictions for burglary of a habitation, one third-degree felony conviction
for attempted burglary of a habitation, and one state jail felony conviction for
possession of a controlled substance. Further, the record reflects that despite being
10
placed on “zero tolerance” community supervision for the underlying offenses,
Landry pled “true” to committing at least three additional criminal offenses while
on probation, including two counts of possession of a controlled substance and
public intoxication. At the conclusion of the hearing, the trial court stated: “[A]t
some point, Lionel, it’s got to come to an end. You just can’t – you can’t go
commit five major felon[ies] – I didn’t even talk about your misdemeanor history –
and then come to me and put it on me. You see, it’s on you now[.]”
Nothing in the record suggests that the trial judge refused to consider the
mitigating circumstances presented by Landry’s attorney, imposed a predetermined
punishment, or arbitrarily refused to consider the entire range of punishment in
assessing Landry’s sentence. Instead, the record reflects that the trial court listened
to the arguments presented by both sides, reviewed the evidence in the record
before it, and determined that seventy-five years was an appropriate punishment in
each case, particularly considering Landry’s extensive criminal history and
continued criminal behavior while on probation. Further, the record of the final
revocation hearing demonstrates that the trial judge was aware of the applicable
punishment range, and there is nothing in the record that rebuts the presumption
that he considered this range in assessing Landry’s punishment. We conclude,
therefore, that Landry has not met his burden of demonstrating that the trial court
arbitrarily failed to consider the full range of punishment.
11
We also find nothing in the record to establish that the trial judge was biased
or prejudiced or otherwise failed to remain detached and neutral during the final
revocation hearing. “[T]he terms ‘bias’ and ‘prejudice’ do not encompass all
unfavorable rulings towards an individual, or [his] case[.]” Abdygapparova v.
State, 243 S.W.3d 191, 198 (Tex. App.—San Antonio 2007, pet. ref’d). Rather,
such terms “must ‘connote a favorable or unfavorable disposition or opinion that is
somehow wrongful or inappropriate, either because it is undeserved, or because it
rests upon knowledge that the subject ought not to possess . . . , or because it is
excessive in degree.’” Id. (quoting Liteky v. United States, 510 U.S. 540, 550
(1994)). “Judicial remarks during the course of a trial that are critical or
disapproving of, or even hostile to counsel, the parties, or their cases, ordinarily do
not support a bias or partiality challenge.” Dockstader v. State, 233 S.W.3d 98,
108 (Tex. App.—Houston [14th Dist.] 2007, pet. ref’d). Further, “expressions of
impatience, dissatisfaction, annoyance, and even anger” do not establish bias or
partiality. Liteky, 510 U.S. at 555-56. Rather, the defendant must show “a ‘deep-
seated favoritism or antagonism that would make fair judgment impossible.’”
Abdygapparova, 243 S.W.3d at 198 (quoting Liteky, 510 U.S. at 555).
Landry argues that the trial court’s failure to remain detached and neutral is
evidenced by the fact that the trial judge “berated” him during the revocation
hearing. Landry, however, fails to identify any specific statement, action, or
12
inaction by the trial judge that he contends constitutes a failure to remain impartial
or a deep-seated favoritism or antagonism that would make fair judgment
impossible. After conducting an independent review of the record, we do not find
anything in the record indicating that the trial court failed to remain detached and
neutral during the revocation hearing. In fact, the record reflects that the trial court
gave Landry numerous chances to avoid being convicted and sentenced in both
cases. Despite Landry’s extensive criminal history, the trial court agreed to place
Landry on deferred adjudication for the underlying offenses, thereby giving Landry
an opportunity to avoid a conviction in each case if he successfully completed the
terms of his community supervision. Thereafter, at the January 7, 2013 revocation
hearing, the trial court withheld ruling on the State’s motion to revoke and gave
Landry an additional six months to prove that he could comply with the terms of
his community supervision, even though he had pled “true” to committing the
offense of possession of controlled substance while on probation. On August 12,
2013, the trial court held another hearing on the State’s motion to revoke, during
which it again withheld ruling on the State’s motion and gave Landry two more
months to show that he could be successful on probation. Despite the trial court’s
considerable leniency, the record reflects that Landry continued to offend on
probation. We find no evidence that the trial court failed to remain detached and
neutral during the proceedings below, and we perceive no denial of due process
13
under the state or federal constitution. We overrule Landry’s second point of error
in each case.
Having overruled Landry’s issues in cause numbers 11-12964 and 11-12965,
we affirm the trial court’s judgment in both cases.
AFFIRMED .
_____________________________
CHARLES KREGER
Justice
Submitted on April 30, 2014
Opinion Delivered September 3, 2014
Do not publish
Before McKeithen, C.J., Kreger and Johnson, JJ.
14