John Anthony Sanchez v. the State of Texas

Opinion filed July 20, 2023
In The
Eleventh Court of Appeals
__________
No. 11-21-00259-CR
__________
JOHN ANTHONY SANCHEZ, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 70th District Court
Ector County, Texas
Trial Court Cause No. A-18-1478-CR
MEMORANDUM OPINION
This is an appeal from a life sentence assessed by the trial court after it
adjudicated John Anthony Sanchez’s guilt and revoked his deferred adjudication
community supervision. In his sole issue on appeal, Appellant contends that the
evidence was legally insufficient to support the trial court’s judgment. Appellant
essentially asserts that the evidence was legally insufficient to support the trial
court’s imposition of a life sentence. We affirm.
Background Facts
The State charged Appellant by indictment with the first-degree felony
offense of possession with an intent to deliver cocaine in an amount of four grams
or more but less than two hundred grams. See TEX. HEALTH & SAFETY CODE
§ 481.112(d) (West 2017). Appellant pleaded guilty pursuant to a plea bargain
agreement on May 11, 2021. The trial court deferred a finding of guilt and placed
Appellant on deferred adjudication community supervision for a term of ten years.
The State filed a motion on August 24, 2021, to adjudicate Appellant’s guilt
alleging that on August 22, 2021, Appellant had committed six violations of the
terms and conditions of his community supervision. Four conditions of Appellant’s
community supervision were that he shall (1) commit no new offense; (2) avoid
persons and/or places of disreputable or harmful character, including an
establishment where 51% or more of the establishment’s revenue is derived from the
sale of alcoholic beverages; (3) not associate with or be in the presence of any person
who has a criminal record involving any felony offense; and (4) be at his residence
from 10:00 p.m. until 6:30 a.m. The alleged violations in the State’s motion to
adjudicate were that Appellant committed three new offenses: possession of
marihuana, unlawful carrying of a weapon, and theft of a firearm; failure to avoid
an establishment where 51% or more of revenue is derived from the sale of alcoholic
beverages; associated with, or was in the presence of, a person who has a felony
criminal record; and failed to be at his residence by 10:00 p.m. Appellant pleaded
“not true” to the first three allegations that alleged new criminal offenses and “true”
to the remaining allegations.
Officer Nicholas Moore with the Odessa Police Department testified about the
events surrounding Appellant’s arrest on August 22, 2021. Officer Moore and
Sergeant Tyler Rogers were working as off-duty police officers at Club Tequila.
Officer Moore testified that Club Tequila routinely employed off-duty police
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officers because of the narcotics trafficking, physical violence, and gun violence that
frequently occurred on the premises. Officer Moore testified that, on August 22,
2021, he noticed a group of people walk into the club, and he checked social media
to see “what was being conducted inside the club.” Officer Moore viewed a
Snapchat that Kamori Allen, “a known criminal for drive-by shootings,” posted from
Club Tequila’s bathroom. Officer Moore observed that Luis Alberto Tavarez,
Samuel Avila, Caleb Gaddison, and Appellant were also taking Snapchats inside the
bathroom at the club. Officer Moore testified that several of the individuals in
Allen’s Snapchat were the subject of an active investigation.
Officer Moore testified that the Odessa Police Department knew of these
individuals because “[t]heir names, and their associates, have popped up multiple
times for multiple drive-by shootings, narcotics dealings.” Officer Moore had
knowledge that Avila was on deferred adjudication community supervision for a
burglary-of-a-habitation charge, had been indicted for a different burglary-of-a-
habitation charge, had previously been arrested for other burglaries, had been
connected to a murder, and was selling narcotics. 1
Officer Moore and Sergeant Rogers entered the club and observed the group
smoking marihuana. The group moved to a different corner of the club to avoid
Officer Moore and Sergeant Taylor. The officers then returned outside and waited
by the only exit for the group to leave the club. At around 2:00 a.m., Avila,
Zephaniah Blaylock, DeMarcus Cameron, and Appellant exited the club and got into
a vehicle. Sergeant Rogers requested that two patrol units assist in conducting a
traffic stop on the vehicle. Officer Moore watched the vehicle leave the parking lot
and speed away from the marked patrol units.
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The State named Avila as the person with a felony criminal record that Appellant was in the
presence of at the time of his arrest.
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The vehicle pulled into the Palms Apartments, a location that Officer Moore
testified was known for narcotics distribution, and the four passengers “immediately
exited the vehicle in a fast motion.” Officer Moore approached the vehicle after the
passengers left and noticed two handguns and an open bottle of liquor in plain view
along with “an extremely strong odor of marijuana” emitting from the vehicle’s open
window. Officer Moore secured a search warrant for the vehicle and found several
additional items upon execution of the warrant. In total, officers recovered an open
bottle of liquor, “puff bars, which [] are electronic tobacco smoking devices,”
marihuana, a digital scale commonly used for weighing narcotics, three firearms that
had been reported stolen, and an additional firearm.
Officers located the four individuals hiding in an apartment closet. Officer
Moore testified that, because no one took responsibility for the marihuana or the
three stolen firearms2 that were “all in [the] immediate care, custody, and control of
everybody in the vehicle,” Appellant was charged with possession of marihuana,
unlawful carrying of a weapon, and three “counts” of theft of a firearm.
At the close of the guilt/innocence phase of the revocation hearing, the trial
court found the first three allegations in the State’s motion to adjudicate true,
accepted Appellant’s plea of true to allegations four through six, and adjudicated
Appellant guilty of possession of cocaine with an intent to deliver. Punishment
evidence then followed.
Investigator Cody Smith with the Ector County Sheriff’s Office testified,
without objection, regarding Appellant’s previous involvement in a 2020 murder
that he investigated. On November 1, 2020, Investigator Smith was dispatched to a
shooting-homicide that had occurred at a party. A witness informed officers that he
and the victim were leaving the party in a vehicle when numerous people began
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Avila took responsibility for the firearm that had not been reported as stolen.
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firing at the vehicle. The victim was shot and killed in his vehicle. The witness
identified Appellant as one of the shooters.
Investigator Smith testified that there had been an “ongoing investigation” of
Appellant and the victim’s relationship. Several shootings and “weapons-related
problems” had already occurred between the victim and Appellant and his friends.
Officer Smith testified that these “issues” between Appellant and the victim
escalated until “this night where they ended up seeing each other, and the shooting
occurred.”
Appellant was charged with murder. However, Investigator Smith testified
that evidence tampering and conflicting witness statements created issues with the
investigation and prosecution of the offense. The victim’s parents were
subsequently charged with tampering and fabricating physical evidence after
officers located physical evidence involved in the shooting at the parents’ residence.
Investigator Smith also acknowledged that conflicting statements from witnesses
presented a problem with the investigation and prosecution of the shooting.
Next, the State called Corporal Gary Potter with the Odessa Police
Department to testify regarding an April 2018 incident involving Appellant.
Corporal Potter testified that detectives were conducting surveillance on a residence
and witnessed Appellant smoking marihuana outside the property. Corporal Potter
arrived at the scene after a detective informed him that a known drug dealer was at
the residence and was seen possessing marihuana. Appellant and the other people
in the home fled when police began approaching the residence. Officers entered the
home in pursuit of the individuals and saw “a lot of criminal-type evidence” in plain
view, including weapons, marihuana, a digital scale for weighing drugs, a metal
pipe, and counterfeit bills. After obtaining a search warrant, Corporal Potter also
found approximately 11.1 grams of cocaine in a bedroom where Appellant’s school
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identification card was located. Appellant accepted responsibility for a firearm and
the cocaine.
Appellant did not present any witnesses during the punishment hearing.
During closing statements, Appellant’s trial counsel requested “leniency” because
of Appellant’s age and his “realiz[ation]” that “he did wrong in going to his sister’s
birthday party at Club Tequila and staying out too late.” The trial court sentenced
Appellant to imprisonment for life in the Institutional Division of the Texas
Department of Criminal Justice.
Analysis
In his sole issue on appeal, Appellant contends the evidence was legally
insufficient to support the trial court’s imposition of a life sentence. We first note
that, when the length of the sentence imposed is within the legislatively prescribed
range, it is not subject to a sufficiency-of-the-evidence review on appeal. Jarvis v.
State, 315 S.W.3d 158, 162 (Tex. App.—Beaumont 2010, no pet.); see Parker v.
State, 462 S.W.3d 559, 566 (Tex. App.—Houston [14th Dist.] 2015, no pet.) (same)
(citing Jarvis, 315 S.W.3d at 162).
Appellant makes three arguments as to why he believes that the trial court’s
life sentence was improper. First, Appellant asserts that the State impermissibly
relied on Investigator Smith’s testimony during punishment because it failed to list
the murder allegation in its motion to adjudicate guilt, thus creating a “material
variance” between the State’s motion to adjudicate and the evidence presented at the
hearing. However, Appellant has cited no authority, and we have found none, that
requires the State to allege in its motion to adjudicate guilt the evidence it wishes to
offer on punishment.
After the adjudication of guilt, the case proceeds as if the adjudication of guilt
was never deferred. TEX. CODE CRIM. PROC. ANN. art. 42A.110(a) (West 2018); see
also Blackwelder v. State, No. 2-05-042-CR, 2006 WL 3525383, at *2 (Tex. App.—
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Fort Worth 2006, pet. ref’d) (mem. op., not designated for publication) (applying
Article 37.07 to the punishment portion of the appellant’s adjudication hearing).
“Code of Criminal Procedure Article 37.07, Section 3(a) governs the admissibility
of evidence during the punishment phase of a non-capital trial.” Erazo v. State, 144
S.W.3d 487, 491 (Tex. Crim. App. 2004) (footnote omitted); see CRIM. PROC.
art. 37.07, § 3 (West Supp. 2022). Section 3(g) contains a notice requirement that is
triggered “[o]n timely request of the defendant.” CRIM. PROC. art. 37.07, § 3(g);
Sanders v. State, 422 S.W.3d 809, 814 (Tex. App.—Fort Worth 2014, pet. ref’d).
Here, Appellant has not cited to any place in the record wherein he requested notice,
thus, he has not shown that he was entitled to notice of the State’s intent to introduce
evidence of the alleged murder. See Sanders, 422 S.W.3d at 814; Blackwelder, 2006
WL 3525383, at *2.
The State set forth six allegations in its motion to adjudicate guilt, all of which
stemmed from Appellant’s August 22, 2021, arrest. After Officer Moore’s
testimony about the events of August 22, 2021, the trial court clearly stated on the
record that it (1) found the six allegations in the State’s motion to adjudicate guilt
true; (2) revoked Appellant’s community supervision; (3) adjudicated Appellant
guilty of the underlying offense; and then (4) announced that it would “entertain
some punishment evidence at this time.” Only then did the State call Investigator
Smith to testify about Appellant’s suspected involvement in the 2020 murder. As
noted previously, Appellant did not object to Investigator Smith’s testimony on any
grounds, including either for a lack of notice or a “material variance.” Accordingly,
Appellant has not preserved his notice and variance arguments for appellate review.
See TEX. R. APP. P. 33.1. Moreover, the State did not rely on Appellant’s alleged
involvement in a murder as “the basis for revocation” because Appellant’s
community supervision had already been revoked, and his guilt already adjudicated,
before the State called Investigator Smith to testify. Therefore, there is no variance
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between the State’s motion to adjudicate guilt and the evidence it presented in
support of its motion.
Appellant next contends that the evidence about his suspected involvement in
the 2020 murder was impermissible because it occurred outside the period of his
community supervision. Appellant’s assertion is incorrect. Section 3(a) of
Article 37.07 defines the evidence that is admissible at the punishment phase, and it
“does not contain a time limitation for the admission of extraneous offenses or bad
acts relating to a defendant’s punishment.” Sanders, 422 S.W.3d at 815 n. 5 (citing
CRIM. PROC. art. 37.07, § 3(a)(1); Fowler v. State, 126 S.W.3d 307, 311 (Tex.
App.—Beaumont 2004, no pet.)). We additionally note that, once again, Appellant
did not object to Investigator Smith’s testimony on any basis.
Appellant’s third argument is that the evidence of his alleged involvement in
the 2020 murder was an impermissible basis for the trial court to impose a life
sentence because the State “did not have enough evidence to proceed to try
[Appellant] for murder.” Appellant essentially contends that the decision to not
proceed with the murder charge against Appellant precluded the State from later
relying on the allegations as a basis for punishment evidence. In his reply brief,
Appellant contends that, in doing so, the State made “an alarming end run around
the due process requirements,” and that the State used the revocation proceedings as
a “backdoor for obtaining convictions when the evidence falls short of ‘beyond a
reasonable doubt.’” However, Appellant has not cited any authority for these
propositions, and he did not present them to the trial court for consideration.
Appellant is essentially challenging the sufficiency of the evidence supporting
an extraneous offense. However, appellate courts do not review the sufficiency of
the evidence supporting an extraneous offense presented during the punishment
phase of trial. Palomo v. State, 352 S.W.3d 87, 94 (Tex. App.—Houston [14th Dist.]
2011, pet. ref’d). Ultimately, the factfinder decides whether the extraneous offense
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was proven beyond a reasonable doubt. Id. at 94–95. However, the factfinder is not
required to expressly declare that it finds that the defendant committed the
extraneous offense beyond a reasonable doubt, and in most instances, it cannot be
determined if any such finding would affect the factfinder’s determination of the
proper punishment. Id. Instead, the correct argument is to challenge the trial court’s
decision to admit the evidence for an abuse of discretion. Id. But here, Appellant
did not object to the testimony at the punishment hearing and he does not challenge
the admission of the evidence on appeal. Accordingly, Appellant’s contention is not
cognizable on appeal. See TEX. R. APP. P. 33.1(a).
A trial court’s decision regarding what sentence to impose is a “normative
process, not intrinsically factbound.” Ex parte Chavez, 213 S.W.3d 320, 323 (Tex.
Crim. App. 2006). “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.” 3 Id. (footnote omitted);
see State v. Simpson, 488 S.W.3d 318, 323 (Tex. Crim. App. 2016) (“[T]his Court
has traditionally held that punishment assessed within the statutory limits, including
punishment enhanced pursuant to a habitual-offender statute, is not excessive, cruel,
or unusual.”).
As noted previously, Appellant did not preserve this issue for appellate
review. To preserve error for appellate review, the record must show that “the
complaint was made to the trial court by a timely request, objection, or motion that:
(A) stated the grounds for the ruling that the complaining party sought from the trial
court with sufficient specificity to make the trial court aware of the complaint, unless
Because Appellant is not making an Eighth Amendment claim that his sentence was grossly
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disproportionate, it would appear that there is a question as to whether his claims are cognizable in light of
Chavez’s use of the term “unassailable.” See Chavez, 213 S.W.3d at 323–24.
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the specific grounds were apparent from the context.” TEX. R. APP. P. 33.1(a)(1)(A).
To preserve alleged error relating to excessive punishment, a defendant must make
a timely request, objection, or motion to the trial court. Mercado v. State, 718
S.W.2d 291, 296 (Tex. Crim. App. 1986); Castaneda v. State, 135 S.W.3d 719, 723
(Tex. App.—Dallas 2003, no pet.); see Burt v. State, 396 S.W.3d 574, 577 (Tex.
Crim. App. 2013) (“In some instances, an appellant may preserve a sentencing issue
by raising it in a motion for new trial.”); Vidaurri v. State, 49 S.W.3d 880, 886 (Tex.
Crim. App. 2001) (failure to object at the time of sentencing or in a posttrial motion
waives error for appeal); see also Nieto v. State, No. 11-20-00163-CR, 2022 WL
2252424, at *1 (Tex. App.—Eastland June 23, 2022, pet. ref’d) (mem. op., not
designated for publication).
Appellant did not object to his sentence at the adjudication hearing or in a
motion for new trial. Even if Appellant had preserved the error, however, his
contention is without merit. We review a trial court’s determination of punishment
for an abuse of discretion. Jackson v. State, 680 S.W.2d 809, 814 (Tex. Crim. App.
1984). The general rule is that a trial court does not abuse its discretion if the
sentence is within the proper range of punishment. Id. The proper range of
punishment for a first-degree felony is for life or a term between five years and
ninety-nine years. TEX. PENAL CODE ANN. § 12.32 (West 2019). The trial court
sentenced Appellant to a term of life. Therefore, Appellant’s sentence is within the
statutory range for a first-degree felony. Id.
Appellant asserts that receiving a life sentence for an offense in which he
previously received deferred adjudication proves the murder allegation was
impermissibly relied on by the trial court. We find this contention to be unsupported
by authority or the record before us. Appellant’s contention “confuses the decision
to adjudicate, which [is] based on the violations of supervision, with the punishment
decision.” Atchison v. State, 124 S.W.3d 755, 759 (Tex. App.—Austin 2003, pet.
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ref’d). Appellant received a life sentence as punishment for the first-degree felony
to which he had previously pleaded guilty.
Moreover, “[t]he trial court is presumed to have disregarded any inadmissible
evidence.” Moton v. State, 540 S.W.2d 715, 716 (Tex. Crim. App. 1976); Holland v.
State, 481 S.W.2d 410, 411 (Tex. Crim. App. 1972). We have already determined
that the State did not need to include Appellant’s murder investigation in its motion
to adjudicate guilt to present evidence of the murder during punishment. Even if the
trial court disregarded the evidence of the murder investigation, the trial court
received Appellants pleas of true to three allegations and testimony from Officer
Moore and Corporal Potter that Appellant had committed six violations of probation
on August 22, 2021, and had previously been arrested for possession of cocaine in
April 2018. Absent any evidence in the record indicating that the trial court based
its decision solely on Investigator Smith’s testimony, the trial court could have
concluded that Investigator Smith’s testimony was inadmissible and relied on
Officer Moore and Corporal Potter’s testimony instead. We overrule Appellant’s
sole issue.
This Court’s Ruling
We affirm the judgment of the trial court.
JOHN M. BAILEY
CHIEF JUSTICE
July 20, 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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