Carlos Oleander Evans, Jr. v. State

In The
Court of Appeals
Seventh District of Texas at Amarillo
No. 07-17-00249-CR
No. 07-17-00250-CR
No. 07-17-00251-CR
CARLOS OLEANDER EVANS, JR., APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
On Appeal from the 251st District Court
Potter County, Texas
Trial Court Nos. 73,165-C; 73,166-C; and 73,675-C
Honorable Ana Estevez, Presiding
October 25, 2018
MEMORANDUM OPINION
Before QUINN, C.J., and CAMPBELL and PARKER, JJ.
Appellant, Carlos Olander1 Evans, Jr., appeals his convictions for aggravated
assault with a deadly weapon.2 We affirm the judgments of the trial court.
1 We note that the record reflects the correct spelling of appellant’s middle name is “Olander,” but
the judgments in Cause Numbers 73,165-C and 73,166-C show it as “Oleander,” and the judgment in Cause
Number 73,675-C shows it as “Orlander.”
2 See TEX. PENAL CODE ANN. § 22.02(a)(2) (West 2011).
Background
Appellant entered an open plea of guilty to three separate indictments for
aggravated assault with a deadly weapon. The trial court found him guilty and assessed
punishment at ten years’ imprisonment in each case, to run concurrently. In each of the
three judgments, the heading “Findings on Deadly Weapon” is marked “N/A.” The trial
court later signed three judgments nunc pro tunc in which the “N/A” was changed to “YES,
A FIREARM.” Appellant filed a motion to vacate the judgments. The trial court denied
the motion and appellant brought this appeal, in which he raises three issues challenging
the law on deadly-weapon findings.
Analysis
Void for Vagueness
In his first issue, appellant submits that the law giving trial judges the discretion
whether to make deadly-weapon findings is unconstitutionally vague. Specifically,
appellant contends that there are no guiding principles on how a trial court’s discretion is
to be exercised in cases where, as here, a deadly weapon was necessary to elevate the
offense to a felony and community supervision is not an option due to appellant’s prior
felony conviction. This lack of “guiding principles,” appellant argues, makes the law
unconstitutionally vague as applied to defendants convicted of aggravated assault with a
deadly weapon and deprives them of due process. He requests that we reform the
judgments to delete the deadly-weapon findings.
When we review the constitutionality of a statute, we begin with the presumption
that the statute is valid and the legislature did not act unreasonably or arbitrarily in
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enacting it. Ex parte Granviel, 561 S.W.2d 503, 511 (Tex. Crim. App. 1978). The party
who challenges the constitutionality of a statute bears the burden of proof. Id. We will
uphold a statute if it can be reasonably construed in a manner that renders it
constitutional. See Ely v. State, 582 S.W.2d 416, 419 (Tex. Crim. App. 1979).
Appellant was convicted under section 22.02(a) of the Texas Penal Code, which
provides that aggravated assault may be committed where the defendant “uses or
exhibits a deadly weapon during the commission of the assault.” TEX. PENAL CODE ANN.
§ 22.02(a). The three indictments at issue accused appellant of aggravated assault with
a deadly weapon, and appellant pleaded guilty to aggravated assault with a deadly
weapon. If the factfinder affirmatively finds that a deadly weapon was used or exhibited
in the offense, then the trial court must enter the affirmative finding in the judgment. TEX.
CODE CRIM. PROC. ANN. art. 42.12 § 3g(a)(2) (now codified at TEX. CODE CRIM. PROC. ANN.
art. 42A.054(b)-(d)) (West 2018). However, even where, as here, the defendant was
found guilty of an offense in which the use of a deadly weapon was a charged or
necessary element, the trial judge still has the discretion to decline to make a deadly-
weapon finding. Guthrie-Nail v. State, 506 S.W.3d 1, 6 (Tex. Crim. App. 2015). In this
case, the trial judge made deadly-weapon findings in the three nunc pro tunc judgments.
When an inmate is serving a sentence for which the judgment contains such an
affirmative finding, that inmate “is not eligible for release on parole until the inmate’s actual
calendar time served, without consideration of good conduct time, equals one-half of the
sentence or 30 calendar years, whichever is less . . . .” TEX. GOV’T CODE ANN.
§ 508.145(d)(2) (West Supp. 2018). Therefore, a deadly-weapon finding, while not part
of the sentence, nonetheless affects appellant’s eligibility for parole. Ex parte Huskins,
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176 S.W.3d 818, 820-21 (Tex. Crim. App. 2005) (“While a deadly-weapon finding does
affect a defendant’s eligibility for probation and parole, it does not alter the range of
punishment to which the defendant is subject, or the number of years assessed. A
deadly-weapon finding may affect how the sentence is served, but it is not part of the
sentence.”).
“A statute or ordinance is unconstitutionally vague if the persons regulated by it
are exposed to an unreasonable risk or detriment without fair warning or if it invites
arbitrary and discriminatory enforcement by its lack of guidance to those charged with its
enforcement.” Noble v. State, No. 07-16-00105-CR, 2017 Tex. App. LEXIS 9792 at *5
(Tex. App.—Amarillo Oct. 18, 2017, pet. ref’d) (mem. op., not designated for publication).
Here, appellant does not raise concerns about lack of notice of the elements of the
charged offense, but rather about its alleged arbitrary enforcement.
To successfully challenge the constitutionality of a statute under the Due Process
Clause, where no First Amendment rights are implicated, appellant must show that a
statute is vague in all of its applications, i.e., that it has no legitimate applications.
Sanchez v. State, 995 S.W.2d 677, 683 (Tex. Crim. App. 1999). For a statute to be held
vague in all its applications, it must necessarily be vague as applied to the particular
defendant; therefore, if the statute is not vague as applied to appellant’s conduct, the due
process challenge necessarily fails. Id.
Appellant contends that because the law provides no guiding principles on when
to impose a deadly-weapon finding, a trial court’s decision to make such a finding “cannot
be anything but arbitrary.” However, appellant has failed to explain how the law on deadly
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weapon findings is unconstitutional—specifically, that it “invites arbitrary and
discriminatory enforcement”—as applied to his particular conduct. Appellant pleaded
guilty to three charges of aggravated assault with a deadly weapon. The trial court made
findings that appellant “used or exhibited a deadly weapon” in connection with each
offense. The trial court had the discretion to make the findings, and the findings are
supported by the record. Appellant’s conclusory statements in his brief fail to illuminate
how the statute encouraged arbitrary or discriminatory enforcement as applied to him in
this case. Because appellant has not met his burden of establishing that the statute is
unconstitutional as applied to him, we overrule his first issue.
Denial of Equal Protection
In his second and third issues, appellant contends that since there are no
standards to guide judicial discretion in adding a deadly weapon finding to a conviction of
aggravated assault with a deadly weapon, defendants such as himself are deprived of
equal protection under the Fourteenth Amendment to the U.S. Constitution and under
Article I, section 3, of the Texas Constitution. The federal and Texas equal protection
provisions are analyzed the same way. See Cannady v. State, 11 S.W.3d 205, 215 (Tex.
Crim. App.), cert. denied, 531 U.S. 850, 121 S. Ct. 125, 148 L. Ed. 2d 80 (2000).
Appellant concedes that people convicted of criminal offenses are not a suspect
class for equal protection purposes. We therefore review the law on deadly weapon
findings to determine whether it rationally relates to a legitimate government purpose.
Kadrmas v. Dickinson Pub. Sch., 487 U.S. 450, 457-58, 108 S. Ct. 2481, 101 L. Ed. 2d
399 (1988); Black v. State, 26 S.W.3d 895, 896-97 (Tex. Crim. App. 2000) (per curiam).
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According to appellant, the law is irrational because it vests the trial court with
unfettered discretion on when to make a deadly-weapon finding. In one aggravated
assault with a deadly weapon case, a court could make an affirmative finding that a deadly
weapon was used, while in another, the court could decline to make such a finding. The
defendants in these two hypothetical cases would then face dissimilar courses of
punishment, in that their eligibility for probation and parole would differ. See Neal v.
Thaler, No. A-09-CA-830-LY, 2010 U.S. Dist. LEXIS 52742, at *11 (W.D. Tex. May 26,
2010) (“The deadly weapon finding bears upon the issue of punishment, namely the
availability of court-ordered probation, as well as the issue of parole eligibility.”). Appellant
contends this distinction is arbitrary.
The equal protection clause requires “that persons similarly situated be accorded
similar treatment,” not that all persons be treated identically. Eiland v. Wolf, 764 S.W.2d
827, 836 (Tex. App.—Houston [1st Dist.] 1989, writ denied). Because individuals who
commit aggravated assault with a deadly weapon are subject to the same statutory
scheme, similarly situated defendants are similarly treated for equal protection purposes.
See Lawton v. State, 913 S.W.2d 542, 560 (Tex. Crim. App. 1995) (no equal protection
violation where those committing the same offense on the same day are subject to the
same statutory scheme). The potential for varying punishments within that statutory
scheme does not equate to a violation of appellant’s equal protection rights. See, e.g.,
Wasman v. United States, 468 U.S. 559, 563, 104 S. Ct. 3217, 82 L. Ed. 2d 424 (1984)
(“It is now well established that a judge or other sentencing authority is to be accorded
very wide discretion in determining an appropriate sentence.”); Quick v. State, Nos. 14-
15-01066-CR, 14-15-01067-CR, 14-15-01068-CR, 2018 Tex. App. LEXIS 5711 at *37
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(Tex. App.—Houston [14th Dist.] July 26, 2018, no pet. h.) (trial court has wide latitude in
setting punishment, and trial court generally has discretion to impose any punishment
within the prescribed range, subject to a gross-disproportionality review); Jimenez v.
State, 298 S.W.3d 203, 211 (Tex. App.—San Antonio 2009, pet. ref’d) (“different
sentencers assess different punishments, and trial judges are afforded broad discretion
in sentencing.”). We conclude that appellant has not demonstrated that the law on
deadly-weapon findings violates his right to equal protection.
Conclusion
Having overruled appellant’s three issues on appeal, we affirm the trial court’s
judgments.
Judy C. Parker
Justice
Do not publish.
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