Mark Anthony Weaver v. the State of Texas

In The
Court of Appeals
Seventh District of Texas at Amarillo
No. 07-21-00180-CR
No. 07-21-00181-CR
MARK ANTHONY WEAVER, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
On Appeal from the 100th District Court
Hall County, Texas
Trial Court No. 4072, 4073, Honorable Stuart Messer, Presiding
August 16, 2022
MEMORANDUM OPINION
Before QUINN, C.J., and PARKER and DOSS, JJ.
We address two appeals by Mark Anthony Weaver. They involve two separate
convictions for twice sexually assaulting a child. His pleading guilty to each initially
resulted in him having the adjudication of his guilt deferred. But, within six months of that,
he began violating the conditions of his community supervision. So, the State moved to
adjudicate his guilt for both crimes. Upon hearing evidence and argument, the trial court
granted the State’s motions, adjudicated him guilty, sentenced him to serve sixteen years
in prison, and levied a $6,000 fine for each conviction. The two prison terms were ordered
to be served consecutively. Weaver appealed both convictions, contending that the
sixteen-year sentences were grossly disproportionate to the nature of the crime. We
affirm.
Applicable Law
Sexual assault of a child under seventeen is a second-degree felony. TEX. PENAL
CODE ANN. § 22.011(f). Such a felony is punishable by a prison term of not less than two
years or more than twenty, coupled with a fine up to $10,000. Id. § 12.33. Each of the
sentences levied at bar fell within that range. See Johnson v. State, No. 07-20-00053-
CR, 2021 Tex. App. LEXIS 10071, at *7 (Tex. App.—Amarillo Dec. 21, 2021, pet. ref’d)
(mem. op., not designated for publication) (stating that a sentence within the statutory
range of punishment is not excessive, cruel, or unusual).
Next, a claim like that before us must be preserved for review. Green v. State, No.
07-19-00411-CR, 2021 Tex. App. LEXIS 5589, at *16 (Tex. App.—Amarillo July 14, 2021,
pet. ref’d) (mem. op., not designated for publication). One does that by presenting “to the
trial court a timely request, objection, or motion stating the specific grounds for the ruling
desired.” Id. Preservation also requires that the grounds urged on appeal comport with
those presented to the trial court. Hallmark v. State, 541 S.W.3d 167, 171 (Tex. Crim.
App. 2017) (stating that a claim raised on appeal will not be considered if it varies from
the objection made at trial). With that in mind, we observe the following. To the extent
that appellant broached the topic of an unconstitutional sentence to the trial court, it
occurred during his counsel’s closing argument. He argued: “we would object to any
stacking of the sentences, ask that they run concurrent so as not to violate Mr. Weaver’s
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right to the Eighth Amendment, which is the right against cruel and unusual punishment.”
Assuming that brought to the trial court’s attention the specific allegation of
disproportionality, the specific ground underlying the claim was quite limited. It involved
“stacking of the sentences.” Defense counsel suggested that stacking the sentences
could violate his client’s Eighth Amendment right. Yet, nothing is said of stacking on
appeal. Instead, appellant’s argument here focuses only on the length of the prison terms.
That is, he believes assessing sixteen years is disproportionate to the nature of the crime.
This means that the grounds he urged below do not comport with those raised on appeal,
and the latter were not preserved.
And, if for some reason one could interpret his current argument as encompassing
the sole ground urged below, it appears that stacking sentences does not alone make
sentences grossly disproportionate to the offense. Indeed, the appellant’s two seventy-
five-year sentences for sexually assaulting a child were stacked, and we did not find them
to be disproportionate in Johnson, 2021 Tex. App. LEXIS 10071, at *6–9. Instead, we
concluded the evidence illustrating that he failed to take his community supervision
seriously, his prior convictions, his repeated rape of a fifteen-year-old, and his continuing
criminal conduct removed the sentences from the realm of the exceedingly rare case
within the parameters of a grossly disproportionate sentence. Id.Like Johnson, the evidence here also illustrates that appellant took his opportunity
to reform while on community supervision less than seriously. Soon after he was granted
the opportunity, he began to violate the terms of his probation, which violations included
ingesting controlled substances, drinking alcohol, viewing pornography, and residing in
homes with children. Moreover, appellant admitted to many of the violations. Nor can
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we ignore that he thrice sexually assaulted children. These events consist of the two
underlying convictions before us and another committed earlier involving a seven-year-
old. The latter resulted in his conviction for aggravated sexual assault of a child. In short,
neither the two sixteen-year sentences nor stacking them fall within the exceedingly rare
case of disproportionate sentences.
We overrule the sole issue before us and affirm the two judgments convicting
appellant of sexually assaulting a child.
Brian Quinn
Chief Justice
Do not publish.
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