David Glynn Nunn, Jr v. State

Affirmed and Memorandum Opinion filed April 9, 2015.
In The
Fourteenth Court of Appeals
NO. 14-14-00704-CR
DAVID GLYNN NUNN, JR, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 337th District Court
Harris County, Texas
Trial Court Cause No. 1420647
MEMORANDUM OPINION
Appellant David Glynn Nunn, Jr. appeals his conviction for fraudulent use
or possession of ten or more items of identifying information of elderly
individuals. See Tex. Penal Code Ann. § 32.51(b)(1); (c)(1) (West 2011). In two
issues appellant argues (1) the trial court erred in denying his motion to withdraw
guilty plea; and (2) the assessment of an 18-year sentence was grossly
disproportionate to appellant’s role in the commission of the offense. We affirm.
BACKGROUND
After being admonished in writing pursuant to article 26.13 of the Texas
Code of Criminal Procedure, appellant entered a plea of guilty to the offense of
possession of more than ten items of identifying information of elderly
individuals.1 Appellant also waived the right to have a court reporter record his
plea hearing. The trial court accepted appellant’s plea and ordered a presentence
investigation report (PSI) prepared.
After preparation of the PSI the trial court held a hearing on punishment. At
the beginning of the hearing the trial court asked appellant whether he had entered
a guilty plea and whether he had been admonished that the range of punishment
was five to 99 years or life in prison. To both questions, appellant answered
affirmatively. The State introduced the PSI and appellant’s counsel objected on the
ground that several of the interviews with complainants in the PSI were not
attributable to appellant. Counsel further requested that the court add two
documents to the PSI: a letter from the jail chaplain, and notification from
appellant’s parole officer that he was not under any restrictions from his last prison
sentence. The trial court agreed to make the documents part of the PSI and
admitted the PSI into evidence.
The PSI contains a summary of Sergeant J.A. Hadley’s2 investigation of
appellant. The investigation began when appellant purchased a drill under the
Nunn Constructors account. Nunn Constructors is a construction company owned
1
Appellant also agreed to waive any right to appeal. Appellant’s waiver of the right to
appeal is not effective because there was no agreed recommendation as to punishment. See
Washington v. State, 363 S.W.3d 589, 589–90 (Tex. Crim. App. 2012).
2
The investigating officer’s name is spelled “Headly” in the PSI, and “Hadley” in the
reporter’s record of the hearing and the briefs. For consistency purposes, we will spell the
officer’s name, “Hadley.”
2
by appellant’s father, David Glynn Nunn, Sr. Appellant’s father had not given him
permission to use the Nunn Constructors credit card to purchase construction
equipment. Continued investigation revealed another instance in which appellant
attempted to purchase construction equipment and later sell it. Hadley received
information that appellant was staying in a hotel and arranged surveillance.
Appellant was observed leaving the hotel carrying four backpacks and three pieces
of luggage. Appellant was arrested on outstanding felony warrants and his bags
were searched. An inventory of the bags revealed an envelope with a white
powdery substance appellant identified as methamphetamine, several counterfeit
Texas identification cards with appellant’s picture, several documents with lists of
identifying information, a laminating machine, laptop computer, identification
printer, photo printer, special paper for printing identification cards, and lamination
blanks with “Texas” printed across them with “UV ink.”
In an interview at the police station, appellant admitted that he used the
Nunn Constructors account without permission, passed forged checks, used other
individual’s identities to open credit accounts, used “already open credit accounts,”
made fraudulent Texas driver’s licenses, and intended to deliver
methamphetamine. The PSI then listed summaries of interviews from nine
complainants whose identification had been discovered in appellant’s possession.
The PSI also contained victim-impact statements from some of the nine
complainants. Following admission of the PSI, the State rested.
Appellant testified at punishment detailing his drug addiction, which began
when he was 17 years old. Appellant was employed in the construction industry for
several years and remained employed with the exception of two periods of
incarceration. At times his drug usage also prohibited employment. Appellant
admitted to selling driver’s licenses to pay for methamphetamine, buying and
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selling stolen cell phones, and stealing from his father’s construction company.
Appellant told Sergeant Hadley the identity of the individual to whom he
sold the stolen construction equipment. Appellant testified that in exchange for this
information, Hadley “told me he would help me out with my sentence.” Appellant
further admitted there was no evidence from Hadley to corroborate appellant’s
claim. Appellant denied opening large credit accounts at department stores, and
testified he was “content with the small-level theft [he was] working on.”
Appellant asked the trial court to send him to Cenikor, a residential drug-addiction
treatment facility, rather than prison.
At the conclusion of the hearing the trial court found appellant guilty,
assessed punishment at 18 years’ confinement, and asked, “Do you have any legal
reason why you should not be sentenced at this time?” Appellant responded, “No,
ma’am.”
VOLUNTARINESS OF GUILTY PLEA
In his first issue, appellant contends, “The evidence presented at Appellant’s
Pre-Sentence Investigation Hearing and subsequent Motion to Withdraw Plea of
Guilty supported a finding that Appellant had been promised assistance at
sentencing which was not fulfilled thus making his plea invalid.” Following
sentencing, appellant filed a handwritten “Motion to Withdraw Plea of Guilty.” In
the motion appellant contends (1) he entered into a plea bargain agreement with the
State in which the State agreed to “dismiss all other charges and enhancements,”
and, in return, appellant would receive long-term drug treatment; (2) his plea of
guilty was not voluntary because his attorney did not inform him of the
consequences of submitting to a PSI, and his attorney represented that he had “a
close person[al] friendship with” the trial court, and that his attorney could ensure
that appellant would receive long-term drug treatment rather than a prison
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sentence. The trial court denied appellant’s motion.
A defendant’s guilty plea must be made freely, voluntarily, and knowingly.
Ex parte Evans, 690 S.W.2d 274, 276 (Tex. Crim. App. 1985). In determining
whether a guilty plea is voluntary, this court considers the totality of the
circumstances. George v. State, 20 S.W.3d 130, 135 (Tex. App.—Houston [14th
Dist.] 2000, pet. ref’d). Before accepting a guilty plea, a trial court must admonish
the defendant in accordance with article 26.13 of the Code of Criminal Procedure,
either orally or in writing, to assure that the defendant understands the charges
against him and the consequences of his plea. Ex parte Gibauitch, 688 S.W.2d 868,
870 (Tex. Crim. App. 1985); Tex. Code Crim. Proc. Ann. art. 26.13 (West Supp.
2014).
A record that indicates the defendant was duly admonished before entering a
guilty plea presents a prima facie showing the plea was both knowing and
voluntary. Martinez v. State, 981 S.W.2d 195, 197 (Tex. Crim. App. 1998). A
defendant still may raise the claim that his plea was not voluntary; however, the
burden shifts to the defendant to demonstrate that he did not fully understand the
consequences of his plea such that he suffered harm. Id. Further, when a defendant
affirmatively indicates at the plea hearing that he understands the proceeding’s
nature and is pleading guilty because the allegations in the indictment are true, and
not because of any outside pressure or influence, he has a heavy burden to prove
that his plea was involuntary. George, 20 S.W.3d at 135.
Here, appellant was admonished in writing by the court. Appellant signed
the admonishments, which included the range of punishment, the waiver of trial by
jury, representations that he understood the consequences of his plea, that he was
mentally competent, that he made his plea freely and voluntarily, and that he was
satisfied with his counsel’s representation. The record is silent as to any deviation
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from the proper admonishment procedures, and there is nothing in the plea papers
to indicate that the plea was involuntary. As such, the trial court’s admonishments
substantially complied with the requirements of the Code of Criminal Procedure,
and, therefore, there is a strong presumption that appellant’s plea was voluntary.
The only evidence appellant has presented of any misrepresentation is his
hand-written motion and his statement at the punishment hearing that Hadley told
appellant he would “help [him] out with his sentence.” Appellant admitted,
however, that there was no evidence from Hadley to corroborate his statement.
Misinformation concerning a matter about which a defendant is not
constitutionally or statutorily entitled to be informed may render a guilty plea
involuntary if the defendant shows that his guilty plea was actually induced by the
misinformation. Brown v. State, 943 S.W.2d 35, 42 (Tex. Crim. App. 1997).
However, “a defendant’s claim he was misinformed by counsel, standing alone, is
not enough for us to hold his plea was involuntary.” Fimberg v. State, 922 S.W.2d
205, 208 (Tex. App.—Houston [1st Dist.] 1996, pet. ref’d).
Appellant signed the trial court’s admonishments that he understood the
charge against him and the appropriate range of punishment for the charged
offense was five to 99 years’ confinement and a possible fine not to exceed
$10,000. We presume that recitals in court documents are correct unless the record
affirmatively shows otherwise. Breazeale v. State, 683 S.W.2d 446, 450 (Tex.
Crim. App. 1984). There is no record of the plea hearing to contradict the written
record.
In this case, there is direct as well as circumstantial evidence to indicate that
appellant’s plea was entered freely and voluntarily. Given the non-corroborated
statements of appellant, and the totality of the circumstances, the trial court could
have reasonably determined that appellant’s guilty plea was made knowingly and
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voluntarily. See Evans, 690 S.W.2d at 276. As such, appellant has not met his high
burden to show that the plea was involuntary, and, therefore, the trial court did not
abuse its discretion in denying appellant’s motion to withdraw his plea. We
overrule appellant’s first issue.
CRUEL AND UNUSUAL PUNISHMENT
In his second issue appellant contends that his 18-year-sentence “constituted
cruel and unusual punishment in violation of the Eighth and Fourteenth
Amendments to the Constitution of the United States.”
Appellant failed to preserve his complaint of cruel and unusual punishment
for appellate review. Appellant made no objection to his sentence in the trial court
at the time of sentencing. In his post-judgment motion, appellant challenged the
voluntariness of his plea, but did not lodge an objection under constitutional or
other grounds to the alleged disparity, cruelty, unusualness, or excessiveness of the
sentence.
To preserve error for appellate review, a party must present a timely
objection to the trial court, state the specific grounds for the objection, and obtain a
ruling. Tex. R. App. P. 33.1(a). “All a party has to do to avoid the forfeiture of a
complaint on appeal is to let the trial judge know what he wants, why he thinks
himself entitled to it, and to do so clearly enough for the judge to understand him at
a time when the trial court is in a proper position to do something about it.” Keeter
v. State, 175 S.W.3d 756, 760 (Tex. Crim. App. 2005) (quoting Lankston v. State,
827 S.W.2d 907, 909 (Tex. Crim. App. 1992)). See Rhoades v. State, 934 S.W.2d
113, 120 (Tex. Crim. App.1996) (holding that failure to object on grounds of cruel
and unusual punishment waives claim that sentence violated prohibition in Texas
Constitution); Arriaga v. State, 335 S.W.3d 331, 334 (Tex. App.—Houston [14th
Dist.] 2010, pet. ref’d) (holding that failure to object to a sentence as cruel and
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unusual forfeits error); and Solis v. State, 945 S.W.2d 300, 301 (Tex. App.—
Houston [1st Dist.] 1997, pet. ref’d) (holding that a claim of grossly
disproportionate sentence violative of Eighth Amendment was forfeited by failure
to object).
By failing to object to the trial court’s sentence below, appellant has
forfeited the complaints he now makes on appeal.
Waiver notwithstanding, appellant has not shown that his sentence was cruel
and unusual, or grossly disproportionate to the offense for which he was convicted.
Although a sentence may be within the range permitted by statute, it may
nonetheless run afoul of the Eighth Amendment prohibition against cruel and usual
punishment. Solem v. Helm, 463 U.S. 277, 290 (1983). A sentence is grossly
disproportionate to a crime only when an objective comparison of the gravity of
the offense against the severity of the sentence reveals the sentence to be extreme.
Harris v. State, 204 S.W.3d 19, 29 (Tex. App.—Houston [14th Dist.] 2006, pet.
ref’d); Hicks v. State, 15 S.W.3d 626, 632 (Tex. App.—Houston [14th Dist.] 2000,
pet. ref’d). In its proportionality analysis, a reviewing court must first review
whether the sentence is grossly disproportionate to the offense. Hicks, 15 S.W.3d
at 632. If the reviewing court determines the sentence to be grossly
disproportionate to the crime committed, then it compares (1) sentences for similar
crimes in the jurisdiction and (2) sentences for the same crime in other
jurisdictions. Id. The constitutional principal of the Eighth Amendment is
tempered, however, by the corollary proposition that the determination of prison
sentences is a legislative prerogative that is primarily within the province of the
legislatures, not the courts. Rummel v. Estelle, 445 U.S. 263, 274–76 (1980).
We first determine whether “an objective comparison of the gravity of the
offense against the severity of the sentence reveals the sentence to be extreme.”
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Baldridge v. State, 77 S.W.3d 890, 893 (Tex. App.—Houston [14th Dist.] 2002,
pet. ref’d) (citing Harmelin v. Michigan, 501 U.S. 957, 1005 (1991) (Kennedy, J.,
plurality op.)). Only if we are able to infer that the sentence is grossly
disproportionate will we then compare the challenged sentence against the
sentences of other offenders in the same jurisdiction and the sentences imposed for
the same crime in other jurisdictions. Baldridge, 77 S.W.3d at 893; see also Solem,
463 U.S. at 292.
Appellant argues he was disproportionately sentenced for committing a
“non-violent” offense, “especially in light of Appellant’s long-standing history of
drug addiction.” The trial court sentenced appellant for possession of more than ten
items of identifying information of elderly individuals, a first-degree felony. See
Tex. Penal Code Ann. § 32.51(b)(1); (c)(1). The punishment range for a first-
degree felony is confinement for five to 99 years or life, and a fine not to exceed
$10,000. Tex. Penal Code Ann. § 12.32. When appellant entered his guilty plea he
acknowledged the possible range of punishment.
Appellant admitted that he sold driver’s licenses to pay for
methamphetamine, bought and sold stolen cell phones, and stole from his father’s
construction company. Appellant further admitted that he previously had been
unsuccessful when placed on probation. Appellant has failed to show that his 18-
year sentence is grossly disproportionate to the first-degree felony offense to which
he pleaded guilty. By making fraudulent use or possession of more than ten items
of identifying information of elderly individuals a first-degree felony the
legislature has identified this offense as a serious offense. The PSI contains
recitations from several of the complainants as to the impact of appellant’s crimes
on their lives. With that in mind, the assessment of an 18-year sentence, near the
low end of the sentencing range, is not grossly disproportionate to the offense in
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this case. Because we hold appellant’s sentence is not grossly disproportionate to
his crime, we need not examine the other Solem factors. See Harmelin, 501 U.S. at
1006. We overrule appellant’s second issue.
We affirm the trial court’s judgment.
/s/ John Donovan
Justice
Panel consists of Justices Boyce, McCally, and Donovan.
Do Not Publish — Tex. R. App. P. 47.2(b).
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