Kaylon Doby v. State

NUMBER 13-19-00423-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
KAYLON DOBY, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 214th District Court
of Nueces County, Texas.
MEMORANDUM OPINION
Before Justices Benavides, Hinojosa, and Tijerina
Memorandum Opinion by Justice Tijerina
Appellant Kaylon Doby challenges the trial court’s revocation of his community
supervision by two issues contending that the sentence was disproportionate to the crime
committed in violation of the Eighth Amendment to the United States Constitution and
that the trial court improperly overruled his objection to the State’s closing argument. See
U.S. CONST. amend. VIII. The trial court sentenced Doby to fifty years’ confinement for
the underlying offense of injury to a child, a first-degree felony. See TEX. PENAL CODE ANN.
§ 22.04. We affirm.
I. BACKGROUND
Doby pleaded guilty to injury to a child occurring on September 28, 2016, and the
trial court placed him on deferred adjudication community supervision for a period of eight
years. See id. Subsequently, the State filed a motion to revoke community supervision
alleging that Doby violated the conditions of community supervision by committing a
subsequent offense of injury to a child on March 5, 2019, testing positive for marihuana,
failing to pay court costs and supervision fees, and failing to satisfactorily complete
parenting classes. On August 15, 2019, Doby pleaded “true” to the State’s allegations. 1
Based on Doby’s pleas of true, the trial court found the State’s allegations that Doby
violated the terms of community supervision to be “true.” The trial court continued the
hearing.
At the continued hearing, Ada Booth, M.D., an expert on child abuse, testified
concerning the March 5, 2019 injury to a child offense that Doby committed while on
community supervision. Dr. Booth stated that on March 5, 2019, a mother brought her
four-month old baby to the hospital with a leg injury. According to Dr. Booth, the mother
informed the doctors that she had left the baby alone with Doby, who is the baby’s father,
and when she returned home from an errand, Doby claimed that the baby had injured its
leg after becoming stuck in a swing. Dr. Booth testified that the baby’s leg had been
1 Doby entered into a plea agreement with the State that in exchange for his plea of true to the
State’s allegations, he would not be charged for the March 15, 2019 injury to a child offense and the State
would recommend a twenty-five year sentence for the underlying offense.
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fractured and other tests revealed that the baby also had a fractured rib, which was in the
healing process. Dr. Booth stated that the baby’s leg injury could not have been caused
by getting its leg stuck in a swing strap as described. Dr. Booth stated that the baby “was
not able to get that fracture on [its] own from like a common household accident, or a
medical problem. It’s not related to anything like that. It would be from trauma.” Dr. Booth
concluded that the baby’s injuries were caused by physical abuse.
During closing, the prosecutor stated that the femur is the “hardest bone to break
in the human body in a four-month old child.” Doby objected on the basis that this was
not presented as evidence, and the trial court overruled the objection. Doby
acknowledged that he had previously pleaded “true” to the State’s allegations, including
that he committed the March 5, 2019 offense of injury to a child as described by Dr. Booth.
The State and Doby, as previously agreed, jointly recommended that the trial court
impose a sentence of twenty-five years for the September 28, 2016 offense. 2
2 The trial court admonished Doby in the writing as follows:
Although you may plea bargain with the State for an agreed recommendation, the
Court is not bound to follow any agreed recommendation you may have with the State, and
you will not be allowed to withdraw your plea of true or nolo contendere if the Court does
not follow the agreed recommendation. If you entered a plea of guilty or nolo contendere
pursuant to a plea bargain agreement with the State when you entered your plea of guilty
or nolo contendere in the original proceedings in this cause, that agreement does not carry
forward to a revocation or adjudication proceeding. Therefore, if your plea is based on an
agreement with the State that the State will make a specific recommendation on
punishment, but the Court does not follow that recommendation, you will not be allowed to
withdraw your plea of true.
(Emphasis in original). This admonition adheres to the Texas Court of Criminal Appeals’ analysis in
Gutierrez v. State, wherein the Court stated that “in the context of revocation proceedings, the legislature
has not authorized binding plea agreements, has not required the court to inquire as to the existence of a
plea agreement or admonish the defendant pursuant to 26.13, and has not provided for withdrawal of a
plea after sentencing. 108 S.W.3d 304, 309–10 (Tex. Crim. App. 2003); see TEX. CODE CRIM. PROC. ANN.
26.13 (setting out that when a defendant pleads guilty or nolo contendere to a charged offense pursuant to
a plea agreement with the State, if the trial court rejects the plea agreement “the defendant shall be
permitted to withdraw the defendant’s plea of guilty or nolo contendere”); Ex parte Huskins, 176 S.W.3d
818, 819 (Tex. Crim. App. 2005) (“Even if the parties purport to have a plea bargain as to the sentence to
be assessed after [an] adjudication [of guilt], the trial court is not bound by the rules that apply to plea
bargains at an original sentencing; . . . once the trial court proceeds to adjudication, it is restricted in the
3
The trial court revoked Doby’s community supervision and adjudicated him guilty
of the underlying September 28, 2016 injury to a child offense. The trial court rejected the
State’s recommendation, and it sentenced Doby to fifty years’ confinement. This appeal
followed.
II. SENTENCE
By his first issue, Doby contends that the sentence imposed exposed him “to an
unreasonable, unusual, and unconstitutional punishment” in violation of the Eighth and
Fourteenth Amendments of the United States Constitution. U.S. CONST. amends. VIII,
XIV. Specifically, Doby argues that he was originally placed on eight years’ community
supervision which is widely disproportionate to his fifty-year sentence.
A. Standard of Review and Applicable Law
The trial court’s decision on punishment is reviewed for an abuse of discretion.
Jackson v. State, 680 S.W.2d 809, 814 (Tex. Crim. App. 1984); Quintana v. State, 777
S.W.2d 474, 479–80 (Tex. App.—Corpus Christi–Edinburg 1989, writ ref’d). “Subject only
to a very limited, ‘exceedingly rare,’ and somewhat amorphous Eighth Amendment gross-
disproportionality review, a punishment that falls within the legislatively prescribed range,
and that is based upon the sentencer’s informed normative judgment, is unassailable on
appeal.” Ex parte Chavez, 213 S.W.3d 320, 323–24 (Tex. Crim. App. 2006); Trevino v.
State, 174 S.W.3d 925, 928 (Tex. App.—Corpus Christi–Edinburg 2005, pet. ref’d)
(explaining that a sentence will most likely not be overturned on appeal if it is assessed
sentence it imposes only by the relevant statutory limits.”); see also Weeks v. State, No. 13-11-00628-CR,
2013 WL 485792, at *5 (Tex. App.—Corpus Christi–Edinburg Feb. 7, 2013, no pet.) (mem. op., not
designated for publication) (explaining that the trial court need not admonish the defendant that he may
withdraw his plea of true and stating “Unlike regular community supervision, ‘upon violation of the deferred
adjudication probations, the judges have no further obligation to comply with the plea bargains since the
bargains had already been satisfied by the judges' initial sentencing.’”).
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within the legislatively determined range).
The Eighth Amendment of the United States Constitution provides that “[e]xcessive
bail shall not be required, nor excessive fines, nor cruel and unusual punishment inflicted.”
U.S. CONST. amend VIII. The Eighth Amendment applies to punishments imposed by
state courts through the Due Process Clause of the Fourteenth Amendment. Id. amend.
XIV. This right and almost every constitutional or statutory right can be waived by a “failure
to object.” Smith v. State, 721 S.W.2d 844, 855 (Tex. Crim. App. 1986); Kim v. State, 283
S.W.3d 473, 475 (Tex. App.—Fort Worth 2009, pet. ref’d); Noland v. State, 264 S.W.3d
144, 151–52 (Tex. App.—Houston [1st Dist.] 2007, pet. ref’d) (concluding that failure by
the appellant to object at trial meant that an argument that the sentence was grossly
disproportionate to offense was not preserved); see Mercado v. State, 718 S.W.2d 291,
296 (Tex. Crim. App. 1986) (“As a general rule, an appellant may not assert error
pertaining to his sentence or punishment where he failed to object or otherwise raise such
error in the trial court.”); see also Maza v. State, No. 13–14–00128–CR, 2015 WL
3637821, at *2 (Tex. App.—Corpus Christi–Edinburg June 11, 2015, no pet.) (mem. op.,
not designated for publication) (prohibiting the appellant from making his Eighth
Amendment violation argument for the first time on appeal because the argument was
not preserved as he did not object in the trial court); Martinez v. State, No. 13–02–508–
CR, 2003 WL 22681385, at *4 (Tex. App.—Corpus Christi–Edinburg Nov. 13, 2003, pet.
ref’d) (mem. op., not designated for publication) (determining that the appellant did not
preserve his Eighth Amendment excessive sentence challenged because he did not
object). To preserve a complaint of disproportionate sentencing, the criminal defendant
must make a timely, specific objection to the trial court or raise the issue in a motion for
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new trial. Kim, 283 S.W.3d at 475; Noland, 264 S.W.3d at 151–52; Trevino, 174 S.W.3d
at 927–28; Quintana, 777 S.W.2d at 479 (holding defendant waived cruel and unusual
punishment argument by failing to object).
B. Analysis
Here, Doby neither objected when the trial court pronounced the sentence, nor
complained, in any post-trial motion, that the sentence was excessive or violated the
Eighth Amendment. Therefore, Doby has failed to preserve this issue for our review. See
TEX. R. APP. P. 33.1; Kim, 283 S.W.3d at 475; Noland, 264 S.W.3d at 151–52; Trevino,
174 S.W.3d at 927–28; Quintana, 777 S.W.2d at 479. Moreover, even had Doby
preserved error, a punishment falling within the limits prescribed by a valid statute, as in
this case, is not excessive, cruel, or unusual. 3 See Trevino, 174 S.W.3d at 928. Therefore,
because Doby failed to object to the sentence and the sentence is within the punishment
range, we overrule Doby’s first issue. See TEX. R. APP. P. 33.1; Kim, 283 S.W.3d at 475;
Noland, 264 S.W.3d at 151–52; Trevino, 174 S.W.3d at 927–28; Quintana, 777 S.W.2d
at 479.
III. THE STATE’S CLOSING ARGUMENT
3 In his brief, Doby recognizes that his sentence is within the statutory limits and that usually a
sentence within those limits does not run afoul of the constitution. However, Doby requests that we remand
for a new sentencing hearing pursuant to Solem v. Helm arguing that because the Solem factors are difficult
to apply, we should remand the case. See 463 U.S. 277, 290–91 (1983).
However, in the trial court, Doby failed to raise the Solem factors or present any evidence of the
Solem factors including evidence of the sentences imposed on other criminals in the same jurisdiction and
the sentences imposed for commission of the same crime in other jurisdictions. See id. at 292. Thus, we
are unable to perform a Solem analysis. See Sullivan v. State, 975 S.W.2d 755, 757 (Tex. App.—Corpus
Christi–Edinburg 1998, no pet.); see also Evans v. State, No. 13-18-00658-CR, 2019 WL 3955459, at *3
(Tex. App.—Corpus Christi–Edinburg Aug. 22, 2019, no pet.) (mem. op., not designated for publication)
(relying on Sullivan and denying to apply Solem factors because the appellant failed to raise Solem in the
trial court). In addition, Doby did not argue in the trial court that the Solem factors are difficult to apply as
he now argues on appeal. Therefore, we reject Doby’s invitation to remand for a new sentencing hearing
when Doby did not preserve his Solem argument in the trial court. See TEX. R. APP. P. 33.1.
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By his second issue, Doby contends that the trial court improperly overruled his
objection to the prosecutor’s statement that the femur is the hardest bone to break.
Specifically, Doby claims that the trial court relied on facts not in evidence to determine
his punishment.
A. Standard of Review and Applicable Law
“[W]e will not reverse a trial court’s erroneous overruling of a defense objection [to
an improper jury argument,] unless the error affected the defendant’s substantial rights.”
Coleman v. State, 577 S.W.3d 623, 639 (Tex. App.—Fort Worth 2019, no pet.) (citing
TEX. R. APP. P. 44.2(b); Martinez v. State, 17 S.W.3d 677, 692–93 (Tex. Crim. App.
2000)); see also Threadgill v. State, 146 S.W.3d 654, 666 (Tex. Crim. App. 2004)
(providing that appellate courts apply TEX. R. APP. P. 44.2(b)’s non-constitutional harm
analysis to improper jury argument). “To determine if a defendant’s substantial rights were
affected and if he therefore suffered harm from an improper jury argument, we consider
the following factors: (1) the severity of the misconduct; (2) the measures adopted to cure
the misconduct; and (3) the certainty of the punishment assessed absent the misconduct.”
See Coleman, 577 S.W.3d at 639 (citing Threadgill, 146 S.W.3d at 666–67; Martinez, 17
S.W.3d at 692–93; Mosley v. State, 983 S.W.2d 249, 259 (Tex. Crim. App. 1998)). 4
B. Discussion
“At a hearing on an application to revoke [community supervision], guilt or
innocence is not at issue, and the trial court need not determine the defendant’s original
4 The State concedes “that the prosecutor’s passing reference to the hardness of the femur was
outside the evidence presented and should not have been made.” However, the State argues that “when
an attorney’s argument is directed to the Court, the judge need not formally sustain or overrule an objection
to that argument, but should be presumed to accept and give weight to proper arguments and
considerations, as well as to discount and refuse to consider improper ones.” We decline to address this
argument, as it is not dispositive because as we explain further below, even assuming error, it was
harmless. See TEX. R. APP. P. 33.1; 47.1.
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criminal culpability, only whether the [defendant] broke the contract made with the trial
court to receive [community supervision].” Pierce v. State, 113 S.W.3d 431, 436 (Tex.
App.—Texarkana 2003, pet. ref’d). Moreover, “[w]hen a defendant waives trial by jury and
enters a plea of guilt or nolo contendere before the court to a non-capital offense, the
proceedings become a unitary trial, ‘that is the issues of guilt and punishment are
submitted at the same time.’” Lopez v. State, 96 S.W.3d 406, 412 (Tex. App.—Austin
2002, pet. ref’d) (citing Barfield v. State, 63 S.W.3d 446, 449 (Tex. Crim. App. 2001)).
Here, we will assume for purposes of our discussion that that the prosecutor
injected facts outside the record. Thus, “when considering the severity of the prosecutor’s
misconduct, [if any], we must examine the prejudicial effect of [the] remarks.” Coleman,
577 S.W.3d at 639. The facts allegedly injected by the prosecutor did not relate to Doby’s
original criminal culpability in committing the underlying September 28, 2016 offense of
injury to a child. Doby had previously pleaded guilty to this offense when the trial court
placed him on deferred adjudication community supervision, and Doby’s guilt of the
underlying offense was not at issue here. See Pierce, 113 S.W.3d at 436.
The trial court’s duty at this proceeding was to determine whether to revoke
community supervision. See id. A trial court’s decision to revoke community supervision
is supported by a single violation. Garcia v. State, 387 S.W.3d 20, 26 (Tex. Crim. App.
2012); Moore v. State, 605 S.W.2d 924, 926 (Tex. Crim. App. 1980). Doby pleaded “true”
to all the State’s allegations admitting that he committed the March 5, 2019 offense of
injury to a child and that he also tested positive for marihuana, failed to pay court costs
and supervision fees, and failed to satisfactorily complete parenting classes. Thus, the
trial court could have properly revoked Doby’s community supervision based on Doby’s
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pleas of “true” to any of those violations. We conclude that the prosecutor’s statement
was mild as it did not relate to the issues before the trial court. Finally, there is nothing in
the record supporting a conclusion that the punishment assessed would have been
different absent the prosecutor’s statement as the sentence imposed for the underlying
offense was well within the punishment range for injury to a child. Accordingly, under
these circumstances, we cannot conclude that Doby was harmed when the trial court
overruled his objection to the prosecutor’s statement. See Coleman, 577 S.W.3d at 639.
We overrule Doby’s second issue.
IV. CONCLUSION
We affirm the trial court’s judgment.
JAIME TIJERINA
Justice
Do not publish.
TEX. R. APP. P. 47.2(b).
Delivered and filed the
24th day of September, 2020.
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