Jestine Abraham v. State

AFFIRMED and Opinion Filed June 27, 2019
Court of Appeals
S In The
Fifth District of Texas at Dallas
No. 05-18-00821-CR
JESTINE ABRAHAM, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 195th Judicial District Court
Dallas County, Texas
Trial Court Cause No. F-1840107-N
MEMORANDUM OPINION
Before Justices Bridges, Brown, and Nowell
Opinion by Justice Bridges
Appellant Jestine Abraham pleaded guilty to stalking his ex-wife, and the trial court
sentenced him to five years’ confinement. In two issues, Abraham argues the trial court denied
him his common law right to allocution and imposed a grossly disproportionate punishment in
violation of the Eighth Amendment. We affirm.
Background
Abraham and Wife divorced in September 2017 after twenty-two years of an arranged
Indian marriage. They had a daughter and son.1
Wife lived the entire marriage in fear and suffered physical and mental abuse. In 2001, she
called police after Abraham chased the children around the street threatening to harm them. She
1
At the time of Abraham’s guilty plea and punishment hearing, Daughter was twenty-one and Son was sixteen.
obtained an emergency protective order that was valid for three months against him, but he did not
abide by it. He followed her, sent threatening text messages, and left repeated voicemails. She
often saw him waiting outside their home. He begged her for another chance, and she agreed.
Unfortunately, Abraham did not change, but continued his abusive behavior.
In May 2017, he acted aggressively towards Wife when she tried to leave the house. He
grabbed her hair and threatened to kill her with a knife. She had previously hidden the knives so
he could not find one to carry out his threat. She contacted her parents, and they intervened to
calm Abraham down. She did not call police because she feared retaliation.
In June 2017, Abraham left a threatening voicemail. He said he did not care about going
to jail if anything happened to her. In July, she obtained another protective order that lasted for
two years.
Abraham violated the second protective order in September. On September 11, 2017, he
parked his car in their driveway while he talked to a neighbor. His car blocked Wife from leaving
for work. Abraham was arrested, but continued contacting Wife from jail through letters. Once
released, he left threatening messages and in one, described how he could kill her in such a way
that no one would ever know what happened to her.
On December 20, 2017, Wife’s van was vandalized and all the windows were broken out.
Abraham left a voicemail on Daughter’s cell phone taking responsibility and claiming “that’s only
the beginning.” Wife and Children then moved out. About a week later, a neighbor called the
police when someone broke a house window. Wife believed it was Abraham “because there’s no
one else who can do that.”
Abraham was arrested in January 2018 and continued to contact Wife through letters. On
June 29, 2018, the trial court conducted a hearing.
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Wife testified she was afraid for her children because Abraham had physically and mentally
abused them. She explained Abraham was diagnosed with bipolar disorder about seven years ago,
but was “hit or miss” taking his medication because he denied having metal health problems. She
described him as two different people. He acted normal one moment and then become angry and
violent the next. She also described him as an aggressive alcoholic. She testified to one incident
in which he took kerosene and tried to burn down their home in India.
Daughter testified and described physical abuse that began when she was five years old.
Abraham hit her with belts, tried to choke her, and tried to get a knife to hurt her but could not find
one. He told her he could easily kill her and have another child. She received psychotherapy
because of the constant worry about Mother’s health and safety.
Son testified he witnessed Abraham’s abuse towards Mother for as long as he could
remember. Abraham had been physically abusive towards him in the past but not recently. He
also received letters from Abraham from jail.
Abraham testified he would stay away from his family and take his medication if given
probation. He claimed he and Wife had a happy marriage until her parents got involved and wanted
them to move next door to Wife’s brother. He said Wife’s brother was the aggressive one. He
claimed Daughter gave false testimony to police causing his arrest. He also said he never harmed
or killed anyone, abided by the rules, and was very religious.
The trial court accepted Abraham’s guilty plea and sentenced him to five years’ in prison.
This appeal followed.
Common Law Right To Allocution
In his first issue, Abraham complains the trial court denied him the common law right to
allocution. As a prerequisite to presenting a complaint for appellate review, the record must show
that the specific complaint was made to the trial court. See TEX. R. APP. P. 33.1(a). Any right of
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allocution must be preserved by making a timely and specific objection in the trial court and
obtaining a ruling. McClintick v. State, 508 S.W.2d 616, 618 (Tex. Crim. App. 1974) (op. on
reh’g) (concluding appellant failed to preserve his right to common law allocution by failing to
object prior to the trial court imposing sentence). Abraham did not object at trial on the ground he
was denied a common law right of allocution, and therefore, he failed to preserve error. See King
v. State, No. 05-18-00286-CR, 2019 WL 2283882, at *4 (Tex. App.—Dallas May 29, 2019, no
pet. h.) (mem. op., not designated for publication); Williams v. State, No. 05-16-01305-CR, 2018
WL 1373953, at *4 (Tex. App.—Dallas Mar. 19, 2018, no pet.) (mem. op., not designated for
publication). We overrule Abraham’s first issue.
To the extent Abraham mentioned the “potential denial” of his common law right to
allocution in his motion for new trial, the argument was neither timely nor definitive to satisfy the
preservation requirements of rule 33.1. See Gallegos-Perez v. State, No. 05-16-00015-CR, 2016
WL 6519113, at *2 (Tex. App.—Dallas Nov. 1, 2016, no pet.) (mem. op., not designated for
publication) (“[T]o complain on appeal of the denial of a right to allocution, whether statutory or
one claimed under the common law, a defendant must timely object.”). Moreover, while “an
appellant may raise a sentencing issue in a motion for new trial for the first time” on appeal, he
may do so “only if the appellant did not have the opportunity to object in the punishment hearing.”
Burt v. State, 396 S.W.3d 574, 577 (Tex. Crim. App. 2013); Gale v. State, No. 05-17-00595-CR,
2018 WL 3434511, at *7 (Tex. App.—Dallas July 17, 2018, pet. ref’d) (mem. op., not designated
for publication). Abraham had the opportunity to object prior to sentencing and failed to do so.
We overrule his first issue.
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Eighth Amendment
In his second issue, Abraham argues his five-year sentence is a grossly disproportionate
punishment in violation of the Eighth Amendment’s prohibition against cruel and unusual
punishment. The State responds the record does not support an inference of disproportionality.
The concept of proportionality is embodied in the United States Constitution’s ban on cruel
and unusual punishment and requires that punishment be graduated and proportioned to the
offense. U.S. CONST. amend VIII. But, this is a narrow principle that does not require strict
proportionality between the crime and the sentence. State v. Simpson, 488 S.W.3d 318, 322 (Tex.
Crim. App. 2016) (citing Harmelin v. Michigan, 501 U.S. 957, 1001 (1991) (Kennedy, J.,
concurring)). Rather, it forbids only extreme sentences that are “grossly disproportionate” to the
crime. Id. While the United States Supreme Court has acknowledged the lack of clarity in its
precedent regarding what factors may indicate gross disproportionality, it has nevertheless
emphasized that a sentence is grossly disproportionate to the crime only in the exceedingly rare or
extreme case. Id. at 323 (citing Lockyer v. Andrade, 538 U.S. 63, 73 (2003)). Moreover, the Texas
Court of Criminal Appeals has traditionally held that punishment assessed within the statutory
limits is not excessive, cruel, or unusual. See Ex parte Chavez, 213 S.W.3d 320, 323–24 (Tex.
Crim. App. 2006).
To determine whether a sentence for a term of years is grossly disproportionate for a
particular defendant’s crime, a court must judge the severity of the sentence in light of the harm
caused or threatened to the victim, the culpability of the offender, and the offender’s prior
adjudicated and unadjudicated offenses. Simpson, 488 S.W.3d at 323 (citing Graham v. Florida,
560 U.S. 48, 60 (2010)). In the rare case in which this threshold comparison leads to an inference
of gross disproportionality, the court should then compare the defendant’s sentence with the
sentences received by other offenders in the same jurisdiction and with the sentences imposed for
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the same crime in other jurisdictions. Graham, 560 U.S. at 60. If this comparative analysis
validates an initial judgment that the sentence is grossly disproportionate, the sentence is cruel and
unusual. Id.
Abraham argues his five-year sentence is grossly disproportionate to his crime because the
undisputed evidence shows that although he suffers from legitimate and serious mental health
issues, he has no prior convictions of any kind.
Initially, we note punishment for a third-degree felony, which includes stalking, is two to
ten years. See TEX. PENAL CODE ANN. §§ 12.34(a), 42.072(b). Abraham’s five-year sentence falls
within the statutory range for the charged offense, and therefore, is presumptively neither cruel nor
unusual. We must, however, review whether his punishment is proportionate to the underlying
offense. Graham, 560 U.S. at 60.
Although the record does not include any prior convictions, the record establishes Abraham
repeatedly ignored and violated protective orders issued against him. During these violations, he
threatened and sometimes acted violently towards Wife. He threatened to kill her in such a way
no one could find her. He grabbed her hair and threatened to kill her with a knife, but could not
find one. He damaged property on more than one occasion. He left Daughter a voicemail after
smashing out van windows admitting he did it and saying it was only the beginning. He continued
contacting Wife from jail by sending letters. He had previously threatened the children. All three
testified they feared what could happen if Abraham received probation. Abraham had disrupted
their lives to the point of Daughter needing psychotherapy, the family moving, and Son changing
schools. Son testified, “The past six months that he’s been in prison have been the most peaceful
that our family has had.”
Despite Abraham’s bipolar diagnosis approximately eight years ago, he failed to regularly
take prescribed medication to improve his mental health. Moreover, Wife testified he denied
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having mental health issues. Regardless, Wife testified the physical and emotional abuse started
before his bipolar diagnosis. Thus, Abraham’s behavior and outbursts were common-place during
their twenty-two years of marriage and escalated as time passed. They were not isolated incidents
in which he missed a dose of medication and became violent. Instead, the record shows a man
who continued a pattern of physical and emotional abuse that culminated in stalking. Yet, he
believed he followed rules and had not harmed anyone. His testimony indicated a lack of
responsibility for his actions and a lack of understanding of how his harmful behavior scared and
impacted his family. He minimized his behavior and made excuses. Given these circumstances,
Abraham’s five-year sentence is not grossly disproportionate given his culpability and the harm
caused or threatened to Wife. Simpson, 488 S.W.3d at 323. As such, there is no need to compare
his sentences to sentences imposed on others. Id. Abraham’s second issue is overruled.
Conclusion
We affirm the trial court’s judgment.
/David L. Bridges/
DAVID L. BRIDGES
JUSTICE
Do Not Publish
TEX. R. AP. P. 47.1
180821F.U05
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
JESTINE ABRAHAM, Appellant On Appeal from the 195th Judicial District
Court, Dallas County, Texas
No. 05-18-00821-CR V. Trial Court Cause No. F-1840107-N.
Opinion delivered by Justice Bridges.
THE STATE OF TEXAS, Appellee Justices Brown and Nowell participating.
Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.
Judgment entered June 27, 2019
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