Austin Ray Jordan v. the State of Texas

Opinion filed July 7, 2023
In The
Eleventh Court of Appeals
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No. 11-21-00268-CR
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AUSTIN RAY JORDAN, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 32nd District Court
Nolan County, Texas
Trial Court Cause No. 13136
MEMORANDUM OPINION
On October 26, 2020, Appellant pleaded guilty to the charge of aggravated
assault, a second-degree felony. See TEX. PENAL CODE ANN. 22.02(a), (b) (West
Supp. 2022). Pursuant to the terms of a plea agreement, the trial court deferred
adjudication and placed Appellant on community supervision for four years and
assessed a fine of $2,000. Subsequently, the State filed a motion to proceed with an
adjudication of guilt wherein it alleged two violations of the terms and conditions of
Appellant’s deferred adjudication community supervision. However, the State
abandoned one of those allegations at the hearing on the motion. The hearing
proceeded on the remaining allegation—that while on deferred adjudication
community supervision, Appellant committed the offense of assault causing bodily
injury by “headbutt[ing]” his mother and striking her multiple times in the face with
his open hand. The trial court found the allegation to be true and it revoked
Appellant’s community supervision, found him guilty of the charged offense, and
assessed his punishment at confinement for a term of sixteen years in the
Institutional Division of the Texas Department of Criminal Justice. We modify and
affirm.
Background Facts
In 2020, Appellant pleaded guilty to the second-degree felony offense of
aggravated assault. At the hearing, Appellant confirmed that he committed the
offense as charged in the indictment: that he stabbed the victim in the chest with a
knife. Appellant testified that the victim was a friend and that they “were just doing
drugs together.”
At the hearing on the motion to proceed with an adjudication of guilt, the trial
court took judicial notice of an expert report that confirmed Appellant’s competency
to stand trial. Appellant’s mother testified that Appellant had been diagnosed with
“meth-induced” schizophrenia and was prescribed medication. She testified that
Appellant had been involuntarily committed to several mental health treatment
centers prior to his community supervision. His mother stated that Appellant refused
to take his medication as prescribed and refused to comply with the treatment plan
provided by MHMR.
Appellant’s mother testified that, in May 2021, she came home to find that
Appellant had caused significant damage to her residence. Appellant’s mother
confronted Appellant and she subsequently called the police when Appellant
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headbutted her in the face, causing her pain. While she was on the phone with the
operator, Appellant continued to hit his mother on the head with his hands. The
officer who responded to the call testified that he observed Appellant displaying
erratic behavior when he arrived at the residence. Appellant’s mother testified that
she had a headache for about a week afterwards.
At the hearing, Appellant’s mother requested, and was subsequently granted,
a lifetime protective order against Appellant. She stated the reason that she sought
the order was because she did not want to live in fear. At the conclusion of the
hearing, the trial court found that Appellant had violated the terms of his community
supervision and found him guilty of the original offense of aggravated assault.
Analysis
In his sole issue, Appellant contends that the term of his punishment was
excessive and violated his right under the Eighth Amendment to be free from cruel
and unusual punishment. See U.S. CONST. amend. VIII. Appellant contends that his
sentence of imprisonment is “unjust” and “grossly disproportionate” for three
reasons: his youth at the time of the offense; the mental illness from which he suffers;
and that the victim of the original offense did not desire his prosecution. Appellant
argues that his sentence violated Article I, Section 13 of the Texas constitution for
the same reasons. See TEX. CONST. art. I, § 13. Because there is “no significance in
the difference between the Eighth Amendment’s ‘cruel and unusual’ phrasing and
the ‘cruel or unusual’ phrasing of Art. I, Sec. 13 of the Texas Constitution[,]” we
address Appellant’s complaints together. Cantu v. State, 939 S.W.2d 627, 645 (Tex.
Crim. App. 1997). The State argues that Appellant did not preserve this issue for
appeal, and that, even if it were preserved, the sentence did not constitute cruel and
unusual punishment.
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To preserve a complaint that a sentence constitutes cruel and unusual
punishment, a defendant must first raise the issue to the trial court by a “timely
request, objection, or motion” stating grounds for the desired ruling and the trial
court must either rule or refuse to rule on the request, objection, or motion. TEX. R.
APP. P. 33.1(a)(1), (2); Jones v. State, No. 11-19-00251-CR, 2021 WL 3413794, at
*1 (Tex. App.—Eastland Aug. 5, 2021, no pet.) (mem. op., not designated for
publication). An appellant may also preserve a sentencing issue by raising it in a
motion for new trial. Jones, 2021 WL 3413794, at *2. Appellant did not object to
his sentence on any grounds at the time the trial court pronounced the sentence, but
Appellant did present his appellate complaint in his motion for new trial. Therefore,
Appellant preserved his appellate issue for our review.
When we review a trial court’s sentencing determination, “a great deal of
discretion is allowed the sentencing judge.” Jackson v. State, 680 S.W.2d 809, 814
(Tex. Crim. App. 1984). We will not disturb a trial court’s decision as to punishment
“absent a showing of abuse of discretion and harm.” Id. (citing Hogan v. State, 529
S.W.2d 515 (Tex. Crim. App. 1975)).
Appellant pleaded guilty to the second-degree felony offense of aggravated
assault. The punishment range for this offense is imprisonment for a term of two to
twenty years and a fine no greater than $10,000. PENAL § 12.33 (West 2019).
Therefore, Appellant’s sixteen-year sentence and $2,000 fine falls squarely within
the statutory range of punishment.
Generally, “punishment assessed within the statutory limits . . . is not
excessive, cruel, or unusual.” State v. Simpson, 488 S.W.3d 318, 323 (Tex. Crim.
App. 2016). However, a sentence that is within the applicable range of punishment
might be cruel or unusual in the “exceedingly rare” or “extreme” case in which the
sentence is grossly disproportionate to the offense. Lockyer v. Andrade, 538 U.S.
63, 73 (2003) (quoting Harmelin v. Michigan, 501 U.S. 957, 1001 (1991) (Kennedy,
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J., concurring)); Solem v. Helm, 463 U.S. 277, 287 (1983). “The gross
disproportionality principle reserves a constitutional violation for only the
extraordinary case.” Lockyer, 538 U.S. at 77.
“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 [the] 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 the same crime in other jurisdictions.” Id. (citing 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. (citing Graham,
560 U.S. at 60).
The Eighth Amendment prohibits sentences that are “grossly
disproportionate” to the offense for which the defendant has been convicted.
Bradfield v. State, 42 S.W.3d 350, 353 (Tex. App.—Eastland 2001, pet. ref’d) (citing
Harmelin, 501 U.S. at 959). To evaluate the proportionality of a sentence, the first
step is for us to make a threshold comparison between the gravity of the offense and
the severity of the sentence. Id. When analyzing the gravity of the offense, we
examine the harm caused or threatened to the victim or society and the culpability
of the offender. See, e.g., Hooper v. State, No. 11-10-00284-CR, 2011 WL 3855190,
at *3 (Tex. App.—Eastland Aug. 31, 2011, pet. ref’d) (mem. op., not designated for
publication) (citing Solem, 463 U.S. at 291–92). Only if grossly disproportionate to
the offense, must we then compare Appellant’s sentence with the sentences received
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for similar crimes in this jurisdiction or in other jurisdictions. Bradfield, 42 S.W.3d
at 353–54.
We begin our analysis of Appellant’s sentence by noting that by stabbing the
victim in the chest with a knife, Appellant committed an act of great severity that
posed a significant risk to the life of another. Additionally, the record established
that Appellant committed another violent act upon his mother while on deferred
adjudication community supervision. The record also indicates that Appellant
refused to comply with the continued attempts at treatment of his mental illness, and
that his mother’s fear of him was so great that she sought and obtained a permanent
protective order against him.
The evidence presented at trial does not indicate an abuse of discretion of the
trial court in sentencing Appellant to confinement for sixteen years—a term less than
the maximum permitted for the offense. One of the goals of the Penal Code is to
ensure the public safety through deterrence, rehabilitation, and punishment. See
PENAL § 1.02(1) (West 2021). Considering the gravity of Appellant’s offense, his
conduct while on community supervision, and the damage brought as a result of his
actions, we cannot hold that the sentence imposed by the trial court was grossly
disproportionate to the crime to which Appellant pleaded guilty. Furthermore, the
sentence serves the goal of protecting the public safety. Consequently, we need not
compare Appellant’s sentence with the sentences received for similar crimes in this
or other jurisdictions. See Simpson, 488 S.W.3d at 323. Accordingly, we overrule
Appellant’s sole issue on appeal.
We note, however, that the trial court’s judgment incorrectly reflects that
Appellant pleaded “TRUE” to the motion to adjudicate, and that it also incorrectly
reflects that there was a plea bargain agreement. The record reflects that Appellant
did not affirmatively enter a plea of “true” or “not true” to the allegations and that a
contested hearing was held. An appellate court has the power to modify the trial
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court’s judgment to make the judgment speak the truth when it has the necessary
information before it to do so. See TEX. R. APP. P. 43.2(b); Bigley v. State, 865
S.W.2d 26, 27–28 (Tex. Crim. App. 1993). Because we have the necessary
information to make the judgment speak the truth, we modify the judgment of the
trial court to delete “TRUE” in the section titled “Plea to Motion to Adjudicate” and
to delete “FIVE (5) YEARS INSTITUTIONAL DIVISION” in the section titled
“Terms of Plea Bargain.”
This Court’s Ruling
As modified, we affirm the judgment of the trial court.
JOHN M. BAILEY
CHIEF JUSTICE
July 7, 2023
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Bailey, C.J.,
Trotter, J., and Williams, J.
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