Donald Fitzgerald Davis A/K/A Donald F. Davis v. State

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-16-00335-CR
DONALD FITZGERALD DAVIS APPELLANT
A/K/A DONALD F. DAVIS
V.
THE STATE OF TEXAS STATE
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FROM THE 372ND DISTRICT COURT OF TARRANT COUNTY
TRIAL COURT NO. 1386193D
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MEMORANDUM OPINION1
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Appellant Donald Fitzgerald Davis, a/k/a Donald F. Davis, appeals from the
revocation of his community supervision and resulting ten-year sentence. On
appeal, Davis argues that the trial court abused its discretion by finding the
violation allegation true and that his ten-year sentence was grossly
disproportionate and, therefore, unconstitutional. Because we conclude that the
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See Tex. R. App. P. 47.4.
trial court, as the sole arbiter of the credibility of the evidence regarding Davis’s
alleged violation, did not abuse its discretion by finding the violation true and that
Davis failed to carry his burden to show gross disproportionality, we affirm the
trial court’s judgment.
I. BACKGROUND
A. UNDERLYING OFFENSE
A grand jury indicted Davis with the September 18, 2014 theft of four trim
kits valued at less than $1,500, which was classified as a state jail felony based
on Davis’s two prior theft convictions. See Tex. Penal Code Ann. § 31.03(a),
(e)(4)(D) (West Supp. 2016). The indictment contained a felony-enhancement
paragraph, alleging that Davis had been twice previously convicted of the felony
offenses of possession of more than 4 grams but less than 200 grams of cocaine
and of delivery of cocaine. This paragraph enhanced the available punishment
range to that of a second degree felony—“imprisonment . . . for any term of not
more than 20 years or less than 2 years.” Id. §§ 12.33(a) (West 2011), 12.425(a)
(West Supp. 2016). Davis pleaded guilty to the indictment without the benefit of
a plea-bargain agreement. On October 5, 2015, the trial court found Davis guilty
of the offense charged in the indictment, found the felony enhancements true,
and assessed his punishment at ten years’ confinement; however, the trial court
suspended imposition of the sentence and placed Davis on community
supervision for five years. See Tex. Code Crim. Proc. Ann. art. 42.12, § 3 (West
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Supp. 2016). One of the conditions of Davis’s community supervision was that
he commit no new offense. See id. art. 42.12, § 11(a)(1).
B. REVOCATION
The State filed a petition to revoke Davis’s community supervision, alleging
that he had committed a new offense on July 3, 2016: “[Davis] did unlawfully
appropriate, by acquiring or otherwise exercising control over property, namely a
package of paper towels, two packages of meat, and a set of dishes, of the value
of less than $2500, with intent to deprive the owner, [S]ally [B]anks, of the
property.”2 The State offered to recommend a two-year sentence in exchange for
Davis’s plea of true to the petition to revoke and a concurrent two-year sentence
in exchange for Davis’s guilty plea to the July 3, 2016 offense, but Davis rejected
the offer. The morning of the revocation hearing, the State offered to
recommend two concurrent, six-year sentences in exchange for Davis’s pleas of
true and guilty, which Davis rejected because he wanted the new offense tried
separately from the revocation issue.
At the revocation hearing, Davis pleaded not true to the revocation
allegation. Banks, a loss-prevention associate at Walmart, testified that she saw
Davis fail to scan several items at a self-checkout station but put these items in
bags with other items he had paid for. A video of the incident was admitted into
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The State amended its revocation petition to allege an additional violation
of Davis’s community-supervision terms, but the State waived this allegation at
the revocation hearing.
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evidence. Davis also testified at the hearing and stated that the scanner
malfunctioned while he attempted to check out because of water on the scanner
and moisture on some of the items he tried to scan.
The trial court found the alleged violation true, revoked Davis’s community
supervision, and imposed a sentence of ten years’ confinement. Davis filed a
notice of appeal and a motion for new trial. In the motion for new trial, Davis
argued that the judgment “was contrary to the law and the evidence,” the
judgment “was contrary to the interests of justice,” and the sentence was
unconstitutional because it was grossly disproportionate “to the facts of the case
and reflected no consideration of mitigating evidence.” See Tex. R. App. P.
21.3(h). Davis presented the motion to the trial court, but the motion was
deemed denied. See Tex. R. App. P. 21.6, 21.8(c).
II. SUFFICIENCY OF THE EVIDENCE TO SUPPORT REVOCATION
In his first issue, Davis argues that the trial court abused its discretion by
finding the violation allegation true and revoking his community supervision
because the “greater weight of the evidence” did not show that he “intended to
shoplift,” but instead “point[ed] to a malfunctioning piece of equipment.” Thus,
Davis attacks only the evidence supporting the intent element of theft: “There is
simply not enough evidence to prove [Davis] intended to shoplift.”
We review an order revoking community supervision under an abuse-of-
discretion standard. Rickels v. State, 202 S.W.3d 759, 763 (Tex. Crim. App.
2006). In determining the sufficiency of the evidence in revocation cases, the
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State’s burden of proof is by a preponderance of the evidence. Id. A
preponderance is “that greater weight of the credible evidence which would
create a reasonable belief that the defendant has violated a condition of his
[community supervision].” Scamardo v. State, 517 S.W.2d 293, 298 (Tex. Crim.
App. 1974). The trial court is the sole judge of the credibility of the witnesses and
the weight to be given their testimony, and we review the evidence in the light
most favorable to the trial court’s ruling. Cardona v. State, 665 S.W.2d 492, 493
(Tex. Crim. App. 1984).
In the State’s motion to revoke, it alleged that Davis had committed the
new offense of theft, which is proved by evidence that he unlawfully appropriated
property with the intent to deprive the owner of the property. See Tex. Penal
Code Ann. § 31.03(a). Appropriation is unlawful if it is without the owner’s
consent. See id. § 31.03(b). Intent may be inferred from circumstantial evidence
such as the defendant’s actions. See Lozano v. State, 359 S.W.3d 790, 814
(Tex. App.—Fort Worth 2012, pet. ref’d). Again, the State had the burden to
prove each element of theft by a preponderance. See Rice v. State, 801 S.W.2d
16, 17 (Tex. App.—Fort Worth 1990, pet. ref’d).
Davis testified that he tried to scan the items not listed on his receipt but
that the machine malfunctioned based on liquid that leaked onto the scanner.
Indeed, multiple employees tried to help Davis at his self-checkout lane. Davis
also did not try to flee when he was questioned after trying to leave the store and
offered to pay for the non-scanned items. Davis testified that he “overlooked”
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and “forgot” the omitted items. Davis asserts that this evidence compels an
“assumption . . . that [Davis] was trying to check-out at a malfunctioning kiosk.”
But Banks testified that the packages of chicken did not scan properly
because Davis had covered the bar code with his hand while moving the
packages across the scanner. And video of the transaction showed that Davis
nevertheless placed the chicken and paper towels into his bag even though the
monitor gave visual cues that the packages had not scanned while Davis was
looking at the monitor. Davis also covered the bar codes to the paper towels and
toilet paper before running them over the scanner, placing the items into his bag
even though the monitor showed they had not been registered as a purchase.
With the dishes, Davis picked up the box from the left side of the scanner, looked
around, and then put the box in his cart without attempting to scan it. This
evidence allowed the trial court to infer that Davis intended to steal the items not
listed on his receipt.
We conclude that the greater weight of the credible evidence before the
trial court supported a reasonable belief that Davis violated a condition of his
community supervision. See In re T.R.S., 115 S.W.3d 318, 321 (Tex. App.—
Texarkana 2003, no pet.). The trial court was in the best position to determine
the credibility of the witnesses, and we cannot second-guess these
determinations based on the cold record. See, e.g., Aguilar v. State, 471 S.W.2d
58, 60 (Tex. Crim. App. 1971); Mata v. State, No. 01-11-00498-CR, 2012 WL
584210, at *4 (Tex. App.—Houston [1st Dist.] Feb. 23, 2012, pet. ref’d) (mem.
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op., not designated for publication). Viewing the evidence in the light most
favorable to the trial court’s ruling, we conclude that the trial court did not abuse
its discretion by finding the violation allegation true and overrule Davis’s first
issue.
III. CONSTITUTIONALITY OF SENTENCE
In his second issue, Davis argues that his sentence was grossly
disproportionate for a theft offense and, therefore, is unconstitutional. Davis
argues that the sentence is disproportionate to both his underlying theft offense
and the theft offense upon which his community supervision was revoked.
However, the sentence at issue was imposed for the 2014 theft of four trim kits;
thus, proportionality is determined on the basis of that offense and not on the
offense alleged in the State’s motion to revoke—the alleged theft of chicken,
paper towels, toilet paper, and dishes. See Hammer v. State, 461 S.W.3d 301,
304 (Tex. App.—Fort Worth 2015, no pet.); Buerger v. State, 60 S.W.3d 358,
365–66 (Tex. App.—Houston [14th Dist.] 2001, pet. ref’d).
The State argues that Davis failed to preserve this argument for our review
because he did not raise it at the time his sentence was imposed or in a motion
for new trial. But Davis clearly raised his disproportionality argument in his
motion for new trial, which he timely presented to the trial court; therefore, he
preserved the issue. See Hammer, 461 S.W.3d at 304; Williamson v. State,
175 S.W.3d 522, 523–24 (Tex. App.—Texarkana 2005, no pet.); see also Tex. R.
App. P. 21.
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However, Davis’s argument fails for a different, yet similar, reason: Davis
has not pointed to sentences imposed on similarly situated defendants in this and
other jurisdictions; thus, we are unable to determine proportionality. Indeed, to
assess proportionality, we must objectively consider (1) the gravity of the offense
compared to the severity of the sentence, (2) the sentences imposed on other
criminals in the same jurisdiction, and (3) the sentences imposed for the same
crime in other jurisdictions. See Solem v. Helm, 463 U.S. 277, 292 (1983);
McGruder v. Puckett, 954 F.2d 313, 316 (5th Cir. 1992); Moore v. State,
54 S.W.3d 529, 542 (Tex. App.—Fort Worth 2001, pet. ref’d). We are directed to
initially consider the gravity of the offense compared to the sentence and
determine the final two factors only if this first factor indicates a disproportionate
sentence. See Hammer, 461 S.W.3d at 304. Here, however, even if we were to
conclude that the threshold factor should be resolved in Davis’s favor, he failed to
proffer evidence to the trial court with his motion for new trial showing sentences
for theft in this or other jurisdictions involving defendants with a criminal history
similar to his. See id. Thus, Davis failed to carry his burden to show that his ten-
year sentence for theft was a grossly disproportionate sentence that was
unconstitutional. See id.; see also Pantoja v. State, 496 S.W.3d 186, 193 n.4
(Tex. App.—Fort Worth 2016, pet. ref’d). We overrule his second issue.
IV. CONCLUSION
The preponderance of the evidence was sufficient for the trial court to
conclude that Davis violated the terms of his community supervision by
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committing a new offense; therefore, the trial court did not abuse its discretion by
finding the allegation true and revoking his community supervision. And Davis
failed to make the required showing in the trial court to allow this court to assay
his disproportionate-sentence claim. We overrule Davis’s appellate issues and
affirm the trial court’s judgment. See Tex. R. App. P. 43.2(a).
/s/ Lee Gabriel
LEE GABRIEL
JUSTICE
PANEL: GABRIEL, SUDDERTH, and KERR, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: August 3, 2017
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