Dante Crenshaw v. the State of Texas

Affirmed and Memorandum Opinion filed June 15, 2023.
In The
Fourteenth Court of Appeals
NO. 14-22-00157-CR
DANTE CRENSHAW, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 176th District Court
Harris County, Texas
Trial Court Cause No. 1562438
MEMORANDUM OPINION
Following the revocation of his deferred-adjudication community
supervision, the trial court adjudged appellant Dante Crenshaw guilty of the
second-degree felony of aggravated assault with a deadly weapon, and assessed
punishment at imprisonment for six years. See Tex. Penal Code Ann.
§§ 22.02(a)(2), 12.33. In a single issue on appeal, appellant argues his sentencing
hearing was procedurally deficient because he was denied a sentencing hearing and
an opportunity to put on mitigation evidence after the trial court adjudicated his
guilt. Although there was not a separate punishment hearing, appellant did put on
mitigation evidence at the revocation hearing. We therefore conclude that the trial
court did not err and affirm the judgment of the trial court as challenged on appeal.
I. BACKGROUND
As part of his 2018 plea agreement with the State, appellant was placed on
community supervision for six years. Tex. Code Crim. Proc. Ann. art.
42A.053(a)(1). Appellant’s community supervision was subject to a variety of
conditions, including the prohibition against possession of a firearm.
In 2021, the State filed a motion to adjudicate appellant’s guilt alleging that
he had been charged with two counts of aggravated assault with a deadly weapon
and one count of unlawfully carrying a weapon. See Tex. Penal Code Ann.
§§ 22.02(a)(2), 46.02(a). The motion also included several other violations of
conditions of appellant’s community supervision including failure to pay various
assessed fees and failure to attend certain required programs. Appellant pleaded
not true to the State’s allegations.
In 2022, the trial court held a hearing on the State’s motion at which the
State called six witnesses and appellant called three, including himself. Both
counts of aggravated assault stem from an altercation at a tax-preparation agency.
Appellant went with his fiancée to the tax-preparation agency to pick up her refund
check. When the employees at the tax-preparation agency did not have her refund,
a verbal altercation resulted. The employees of the tax-preparation agency allege
that appellant was angry and threatened them with a gun that he retrieved from his
vehicle. Appellant denied the charges. Although he acknowledged the situation got
heated, appellant testified that he did not have a gun on him and never threatened
the employees. The complaining witnesses were cross-examined about their
criminal records, both of which included convictions for theft and/or fraud.
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Several weeks after the tax-refund dispute, plainclothes peace officers
arrested appellant for outstanding warrants while he was walking out of the leasing
office at his apartment complex. They found a gun tucked into the waistband of his
pants, which resulted in a charge for unlawfully carrying a weapon. Appellant
offered mitigation evidence to counter this charge. He testified that the gun
belonged to his brother and that his brother left the gun at his apartment during a
family get together the day before. Appellant claimed he had just alerted his
mother that the gun was in his apartment and expected his brother to come retrieve
it. However, shortly after speaking with his mother, appellant realized his vehicle
was missing so he went to the leasing office to make a report. He stated that he had
forgotten the gun was in his waistband. He also offered an alternative mitigating
explanation for his possession of the weapon on the basis he had been shot several
months before and was concerned for his safety.
The trial court granted the State’s motion and found that appellant violated
the terms and conditions of his deferred adjudication:
The Court is going to find that the defendant has violated his
terms and conditions of his deferred, and the Court will adjudicate his
guilt.
And at this time the Court will hereby sentence the defendant to
six years [in the] Texas Department of Criminal Justice, and he will
get credit for any time he’s already served.
Appellant filed an untimely motion for new trial challenging the trial court’s
sentencing and the lack of a punishment hearing. Although appellant also sought
leave from the trial court to file his motion for new trial late, the trial court did not
rule on either motion. Appellant’s notice of appeal was timely filed before his
motion for new trial.
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II. ANALYSIS
A. Applicable law
A defendant is entitled to a hearing “limited to a determination by the court
of whether the court will proceed with an adjudication of guilt on the original
charge.” Tex. Code Crim. Proc. Ann. art. 42A.108(b). The Code of Criminal
Procedure further provides that “after an adjudication of guilt, all proceedings,
including assessment of punishment, pronouncement of sentence, granting of
community supervision, and defendant’s appeal, continue as if the adjudication of
guilt had not been deferred.” Tex. Code Crim. Proc. Ann. art. 42A.110.
In Issa v. State, the court of criminal appeals held that:
when a trial court finds that an accused has committed a violation as
alleged by the State and adjudicates a previously deferred finding of
guilt, the court must then conduct a second phase to determine
punishment. As Art. 42.12, § 3d(b), V.A.C.C.P. (1988), provides,
“[a]fter an adjudication of guilt, all proceedings, including assessment
of punishment, pronouncement of sentence, granting of probation, and
defendant’s appeal continue as if the adjudication of guilt had not
been deferred.” . . . Thus, based upon the statute, the defendant is
entitled to a punishment hearing after the adjudication of guilt, and the
trial judge must allow the accused the opportunity to present evidence.
The trial court in the instant cause erred in not so doing.
Issa v. State, 826 S.W.2d 159, 161 (Tex. Crim. App. 1992) (discussing former
Code of Criminal Procedure article 42.12, section 3d(b), since repealed 1). The
court’s holding was premised on the fact that the defendant was denied both the
opportunity to present punishment evidence and the opportunity to object to the
trial court’s action until after that action was taken. See Pearson v. State, 994
S.W.2d 176, 178 (Tex. Crim. App. 1999).
1
On appeal, appellant repeatedly refers to former article 42.12, which was repealed at the
time of post-revocation adjudication proceeding.
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However, as appellant acknowledges, if a defendant had the opportunity to
present punishment evidence during the revocation proceedings, “[i]t is immaterial
that the opportunity to present evidence came before the actual words of
adjudication.” Id. at 179. Therefore, all that is required is that the trial court allow
the defendant “the opportunity to present evidence during the proceedings.” Id.(emphasis in original). The court of criminal appeals has repeatedly reaffirmed that
a trial court does not abuse it discretion in not holding a “separate punishment
hearing” when the record reflects that the trial court did not prevent “appellant
from presenting punishment evidence and that appellant did, in fact, present
extensive punishment evidence.” Grammer v. State, 294 S.W.3d 182, 192 (Tex.
Crim. App. 2009); see also Euler v. State, 218 S.W.3d 88, 91 (Tex. Crim. App.
2007) (trial court did not err in refusing to postpone imposition of punishment
because due process did not require trial court to “grant [a] request for another
hearing on another day so that [defendant] could gather evidence and show that
incarceration was not the appropriate punishment in his case”) (emphasis in
original).
B. Appellant was able to and did put on mitigation evidence
Appellant alleges the trial court prevented him from putting mitigating
evidence into the record: “Mr. Crenshaw would have offered mitigating evidence
at his punishment hearing. Counsel for Mr. Crenshaw would have offered
argument on the import of these mitigating factors in the context of the overall
punishment being considered by the trial court.” Though appellant’s argument
suggests that he was prevented from offering any mitigation evidence, appellant
was able to call three witnesses, including himself, at the hearing. Appellant then
rested and offered closing arguments to the trial court. At no point during the
hearing did appellant object or alert the court in any form that he was unable to put
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in evidence all his desired mitigation evidence.
Appellant’s evidence addressing the charge of unlawfully carrying a weapon
was mitigation evidence. He offered evidence in the form of his testimony and his
mother’s testimony explaining that appellant’s brother inadvertently left the gun at
appellant’s apartment and appellant was waiting for his brother to come and
retrieve it. Appellant’s mother testified that appellant’s brother forgot to take the
gun home with him.
The other mitigating evidence that appellant introduced was a second reason
for his possession of a gun. Appellant testified that he had been shot several
months before the incident at the tax-preparation agency and was concerned for his
safety. The trial court allowed appellant to testify to the fact that he had previously
been shot. The only testimony the trial court did not allow into evidence was
appellant’s testimony as to the number of times he had been shot. The evidence
was excluded as not relevant. Even if the number of times appellant had been shot
were relevant, that evidence was already in the record and before the court. One of
the investigating officers testified that appellant explained to him that he was in
possession of a gun on the day he was arrested “because he had been shot eight
times prior.” The officer that arrested appellant at his apartment complex testified
that “he told me it was his brother’s gun, but he was currently carrying it because
he had been shot at in the past, and so he was carrying it [for] protection.”
Appellant does not identify any other mitigating evidence or topics that he
intended to introduce into evidence and was precluded from introducing.2 Because
there is nothing in the record indicating that the trial court prevented appellant
2
Appellant made no offer proof at the hearing, nor did his motion for new trial identify or
include any evidence that he wanted to introduce and was unable to introduce, other than the
number of times that he had been shot.
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from calling any additional witnesses or offering further evidence to dispute or
mitigate the charges at issue, we overrule appellant’s sole issue on appeal.
III. CONCLUSION
We affirm the trial court’s judgment as challenged on appeal.
/s/ Charles A. Spain
Justice
Panel consists of Chief Justice Christopher and Justices Jewell and Spain.
Do Not Publish — Tex. R. App. P. 47.2(b).
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