STATE'S RESPONSE BRIEF

Transcription

1 IN THE COURT OF APPEALS FOR THE FIFTH COURT OF APPEALS DISTRICT JOSE DAVID TREVINO, CR APPELLANT V. NOS CR THE STATE OF TEXAS, APPELLEE CR 5th Court of Appeals FILED: 8/23/11 14:00 Lisa Matz, Clerk APPEALED FROM CAUSE NUMBERS F AND F AND F IN THE CRIMINAL DISTRICT COURT NUMBER THREE OF DALLAS COUNTY, TEXAS; THE HONORABLE GRACIE LEWIS, JUDGE PRESIDING. STATE'S RESPONSE BRIEF CRAIG WATKINS Criminal District Attorney Dallas County, Texas MICHAEL R. CASILLAS, Assistant Criminal District Attorney, Chief Prosecutor - Appellate Division, Oral Argument is requested, 133 N. Riverfront Blvd., LB 19 but only if Appellant is Dallas, TX also requesting argument. (214) / FAX (214) State Bar No

2 TABLE OF CONTENTS TABLE OF AUTHORITIES... iii SUMMARY OF THE CASE...1 STATEMENT OF FACTS...2 SUMMARY OF STATE'S RESPONSIVE ARGUMENTS STATE S REPLY TO APPELLANT S SOLE IDENTICAL ISSUE The contentions in Appellant s sole identical issue entitle Appellant to no relief on appeal. Appellant never contended in the trial court that the trial court abused its discretion and/or violated the objectives of the Texas Penal Code by imposing the sentences of incarceration for periods of 10 and 20 years. Accordingly, no such claims have been preserved for this Court s appellate review. Alternatively, the record does not show that Appellant s sentences of incarceration are in any way violative of the objectives of the Texas Penal Code. WAIVER...6 LEGAL AUTHORITY...6 APPLICATION...8 MERITS...11 LEGAL AUTHORITY...11 APPLICATION...13 CONCLUSION AND PRAYER...19 CERTIFICATE OF SERVICE...20 i

3 TABLE OF AUTHORITIES CASES PAGES Acosta v. State, 160 S.W.3d 204 (Tex. App. Fort Worth 2005, no pet.) State v. Bailey, 201 S.W.3d 739 (Tex. Crim. App. 2006)...7 Carpenter v. State, 783 S.W.2d 232 (Tex. App. Dallas 1989, no pet.)... 13,19 Castaneda v. State, 135 S.W.3d 719 (Tex. App. Dallas 2003, no pet.)...6,9,12 Croft v. State, No CR, 1998 Tex. App. LEXIS 8104 (Tex. App. Dallas December 12, 1998, no pet.)(not designated for publication) Davis v. State, 323 S.W.3d 190 (Tex. App. Dallas 2008, pet. ref d)... 6,9 Davis v. State, No CR, 2007 Tex. App. LEXIS 6019 (Tex. App. Dallas July 31, 2007, no pet.)(not designated for publication) Espinoza v. State, No CR, 2009 Tex. App. LEXIS 6803 (Tex. App. Corpus Christi August 27, 2009, no pet.)(not designated for publication) Flores v. State, 871 S.W.2d 714 (Tex. Crim. App. 1993) ,9 Green v. State, 934 S.W.2d 92 (Tex. Crim. App. 1996), cert. denied, 520 U.S. 1200, 117 S.Ct (1997)...11 Hailey v. State, 87 S.W.3d 118 (Tex. Crim. App. 2002) Harris v. State, 656 S.W.2d 481 (Tex. Crim. App. 1983) ii

4 Hicks v. State, No CR, 1999 Tex. App. LEXIS 7865 (Tex. App. Dallas October 22, 1999, no pet.)(not designated for publication) ,19 Hollywood v. State, No CR, 2003 Tex. App. LEXIS 726 (Tex. App. Dallas January 24, 2003, no pet.)(not designated for publication) ,19 Hubbard v. State, 770 S.W.2d 31 (Tex. App. Dallas 1989, pet. ref d) Hugill v. State, 757 S.W.2d 455 (Tex. App. th Houston [14 Dist.] 1990, pet. ref d)... Jackson v. State, 680 S.W.2d 809 (Tex. Crim. App. 1984) ,12,19 Janecka v. State, 823 S.W.2d 232 (Tex. Crim. App. 1992) ,9 Jenkins v. State, 912 S.W.2d 793 (Tex. Crim. App. 1993)(op. on reh g)....6 Jimenez v. State, 32 S.W.3d 233 (Tex. Crim. App. 2000) ,9 Kirk v. State, 949 S.W.2d 769 (Tex. App. Dallas 1997, pet. ref d)...12 Lankston v. State, 827 S.W.2d 907 (Tex. Crim. App. 1992) ,9 Lewis v. State, 911 S.W.2d 1 (Tex. Crim. App. 1995) Loredo v. State, 159 S.W.3d 920 (Tex. Crim. App. 2004) ,9 Martinez v. State, 91 S.W.3d 331 (Tex. Crim. App. 2002)... 8,10 State v. Mercado, 972 S.W.2d 75 (Tex. Crim. App. 1998)... 8,10 Messer v. State, 757 S.W.2d 820 (Tex. App. st Houston [1 Dist.] 1988, pet. ref d).... iii 14 14

5 Montgomery v. State, 810 S.W.2d 372 (Tex. Crim. App. 1991) ,12 Murphy v. State, 777 S.W.2d 44 (Tex. Crim. App. 1989)(op. on reh g)...12 Oh v. State, No CR, 2006 Tex. App. LEXIS 2358 (Tex. App. Dallas March 29, 2006, pet. ref d)(not designated for publication) Powell v. State, 898 S.W.2d 821 (Tex. Crim. App. 1994), cert. denied, 516 U.S. 991, 116 S.Ct. 524 (1995)...11 Procyshyn v. State, No CR, 1998 Tex. App. LEXIS 7953 (Tex. App. Dallas December 28, 1998, no pet.)(not designated for publication) Reissig v. State, 929 S.W.2d 109 (Tex. App. th Houston [14 Dist.] 1996, pet. ref d)... Reyna v. State, 168 S.W.3d 173 (Tex. Crim. App. 2005) ,7,8,10 Rhoades v. State, 934 S.W.2d 113 (Tex. Crim. App. 1996) ,9 Rogers v. State, 853 S.W.2d 29 (Tex. Crim. App.1993) Stock v. State, No CR, 1999 Tex. App. LEXIS 8302 (Tex. App. Dallas November 5, 1999, pet. ref d)(not designated for publication), cert. denied, 531 U.S. 874, 121 S.Ct. 178 (2000) ,19 Stovall v. State, No CR, 1997 Tex. App. LEXIS 4227 (Tex. App. Dallas August 13, 1997, no pet.)(not designated for publication) Tamminen v. State, 653 S.W.2d 799 (Tex. Crim. App. 1983) Theriot v. State, No CR, 2009 Tex. App. LEXIS 7215 (Tex. App. Dallas September 15, 2009, no pet.)(not designated for publication) iv

6 Thomas v. State, 916 S.W.2d 578 (Tex. App. San Antonio 1996, no pet.) Thompson v. State, No CR, 2003 Tex. App. LEXIS (Tex. App. Fort Worth December 11, 2003, no pet.)(not designated for publication) ,17 Webb v. State, No CR, 1998 Tex. App. LEXIS 2412 (Tex. App. Dallas August 24, 1998, no pet.)(not designated for publication) ,19 Williams v. State, 958 S.W.2d 844 (Tex. App. th Houston [14 Dist.] 1997, pet. ref d)... Wright v. State, 28 S.W.3d 526 (Tex. Crim. App. 2000) Wright v. State, 930 S.W.2d 131 (Tex. App. Dallas 1996, no pet.)...9 Zillender v. State, 557 S.W.2d 515 (Tex. Crim. App. 1977) ,9 14 ARTICLES, CODES, RULES, and CONSTITUTIONS: Tex. Pen. Code 1.02(1)-(6)... 11,17 Tex. Pen. Code 1.02(1)(A) Tex. Pen. Code 1.02(3)...18 Tex. R. App. P. 33.1(a)(1)(A)... 6,9 Tex. R. Evid. 103(a)...10 v

7 TO THE HONORABLE COURT OF APPEALS: The instant brief in response to the brief of Appellant, Jose David Trevino, is filed on behalf of Craig Watkins, the Criminal District Attorney of Dallas County, Texas. SUMMARY OF THE CASE In three separate indictments, Appellant was charged with having burglarized two different habitations and with having been a felon who was unlawfully possessing a firearm. 1 (CR-1: 5; CR-2: 5; CR-3: 4; RR-2: 4-11; RR-3: 4-5). While Appellant s indictment for having possessed a firearm contained two enhancement paragraphs, the State provided written notice in a separate document of the State s intent to enhance Appellant s burglary offenses. (CR-1: 38; CR-2: 36-37; CR-3: 4; RR-2: 4-5). The particular details of the enhancement allegations involved in each case alleged that Appellant had two prior, sequential, final felony convictions, one of which was for aggravated assault and one of which was for aggravated robbery. (CR-1: 38; CR-2: 36-37; CR-3: 4). Appellant also asked the trial court in making its sentencing decisions to take into account Appellant s guilt of an unadjudicated extraneous offense in which Appellant had been charged with an aggravated robbery of the home invasion variety. (CR-1: 40; RR-3: 5-12). Without the benefit of any plea bargain agreement regarding the punishments to be assessed, Appellant pled guilty to each of the offenses charged in the three indictments and admitted the truth of all the State s allegations regarding his prior felony convictions. (CR-1: 1 The abbreviations CR-1, CR-2, and CR-3 refer respectively to the Clerk s Records in cause numbers F , F , and F

8 8-9, 41-45; CR-2: 7-8, 38-42; CR-3: 7, 18-22; RR-2: 4-11; RR-3: 4-5). Appellant underwent an evaluation by the Comprehensive Assessment Treatment Services (CATS) group. (RR-3: 19). The trial court conducted a punishment hearing and heard the testimony of Appellant, Appellant s mother, and of one of the victims of the unadjudicated home-invasion aggravated robbery. (RR-3: 3-36). After hearing the testimony of all of the aforementioned witnesses, the trial court found Appellant guilty of each offense, found each of the enhancement allegations true, and assessed Appellant s punishments at incarceration for a period of 20 years on each of the burglary offenses and 10 years on the charge involving Appellant s possession of a firearm. (CR-1: 8-9, 47-48; CR-2: 7-8, 44-45; CR-3: 7, 23-24; RR-3: 40-42). The trial court made it clear that the victim of the home-invasion aggravated robbery had been found to be a credible witness. (RR-3: 41-42). Appellant lodged no objections whatsoever in regard to the sentences imposed by the trial court. (RR-3: 40-42). Additionally, no motion for new trial was filed in any of the cases. (CR-1: 1-59; CR-2: 1-51; CR-3: 1-31). STATEMENT OF FACTS Appellant executed a written judicial confession admitting that he had burglarized one habitation on April 27, 2009 and had burglarized a different habitation on April 30, (CR-1: 5, 8-9, 45; CR-2: 5, 7-8, 42). Appellant also executed a written judicial confession and admitted that he, as a felon who had previously been convicted of having perpetrated a felony offense, had been guilty of having illegally possessed a firearm. (CR-3: 4, 7, 22). 2

9 Appellant also admitted that he had committed the unadjudicated aggravated robbery that was charged under cause number F and asked the court to consider his admission of guilt in assessing his punishments in the three instant underlying offenses involved in this appeal. (CR-1: 40). Miriam Herrera, who knew Appellant because he had previously associated with her brother-in-law, explained how Appellant and two other cohorts had invaded the apartment she shared with her infant child and the father of that infant child. (RR-3: 7-8). According to Herrera, her brother-in-law was present when Appellant and his two cohorts committed the home-invasion aggravated robbery and Appellant was the first of the three intruders to enter the residence. (RR-3: 8-9). Herrera explained how Appellant had pointed a gun at the 2 throat of the father of her baby and had eventually pointed the gun at the infant child. (RR- 3: 8-10). Herrera also explained how Appellant and his cohorts had stolen jewelry, money, and cellular phones from the residence and that Appellant had threatened to kill everyone including the infant if the crime were to be reported to the police. (RR-3: 8-9). Appellant s mother was of the opinion that, if Herrera and the father of her infant had been operating a drug house (as Appellant had claimed), then Herrera and the infant s father were somehow not really victims. (RR-3: 23-25, 36). While Appellant claimed that no 2 Appellant denied that the robbery had occurred in the manner described by Herrera and asserted that he had not robbed anyone. (RR-3: 23-25). Appellant claimed that he had been using drugs at Herrera s apartment and had failed to pay the father of Herrera s baby for the drugs they had fronted him, thus implying that Herrera and the father of her baby had filed a false police report and/or that Herrera herself had committed aggravated perjury by testifying in the manner she had regarding the facts of the home-invasion aggravated robbery. (RR-3: 23-25). 3

10 home-invasion aggravated robbery had occurred and that he had not robbed anyone in regard to the events at issue, the trial court made the record transparently clear regarding how the trial court had found Herrera to be a credible witness in her claim of having been the victim of the home-invasion aggravated robbery. (RR-3: 23-25, 41-42). Appellant admitted that he had been placed on probation for a period of 3 years in regard to a federal criminal case and that his probation had been revoked after only a period of 6 months. (RR-3: 26). Appellant admitted that in the year 2000 he had been sentenced to incarceration for a period of 6 years in regard to both an aggravated assault conviction and an aggravated robbery conviction and had also been sentenced to incarceration for a period of 2 years in regard to offenses involving possession of a controlled substance and unlawful carrying of a weapon. (RR-3: 27). Appellant admitted that he had used heroin, methamphetamine, marijuana, Xanax, and alcohol. (RR-3: 17). Appellant claimed that all of his criminal conduct had been the result of his desire to feed his drug habit. (RR-3: 15-16). Appellant in effect claimed that when he was hooked on drugs, he had no control over his body or the actions committed by his body. (RR-3: 25). 4

11 SUMMARY OF STATE'S RESPONSIVE ARGUMENTS State's Reply to Appellant's Sole Identical Issue: The contentions in Appellant s sole identical issue entitle Appellant to no relief on appeal. Appellant never contended in the trial court that the trial court abused its discretion and/or violated the objectives of the Texas Penal Code by imposing the sentences of incarceration for periods of 10 and 20 years. Accordingly, no such claims have been preserved for this Court s appellate review. Alternatively, the record does not show that Appellant s sentences of incarceration are in any way violative of the objectives of the Texas Penal Code. STATE'S REPLY TO APPELLANT S SOLE IDENTICAL ISSUE: Appellant s contentions: In a single identical issue argued in regard to each case, Appellant contends that the trial court abused its discretion by sentencing Appellant to imprisonment because that punishment violates the objectives of the system of prohibitions, penalties, and correctional measures in the Penal Code. (Appellant s Brief at pp. iii, 2-3, 6-7). State s responses: The contentions in Appellant s sole identical issue entitle Appellant to no relief on appeal. Appellant never contended in the trial court that the trial court abused its discretion and/or violated the objectives of the Texas Penal Code by imposing the sentences of 5

12 incarceration for periods of 10 and 20 years. Accordingly, no such claims have been preserved for this Court s appellate review. Alternatively, the record does not show that Appellant s sentences of incarceration in any way violated the objectives of the Texas Penal Code. WAIVER LEGAL AUTHORITY To preserve a complaint for appellate review, the complaining party must have lodged a timely and specific objection, motion, or request at the trial court level that stated the grounds for the ruling sought by the requesting party with sufficient clarity to make the trial court aware of the complaint or request and the specific underlying ground or grounds thereof. See Tex. R. App. P. 33.1(a)(1)(A); Reyna v. State, 168 S.W.3d 173, 177 (Tex. Crim. App. 2005). Even claims involving constitutional rights and the constitutionality of statutes are subject to being waived for appellate review if they are not preserved in the trial court by compliance with the aforementioned preservation-of-error rules. See Jimenez v. State, 32 S.W.3d 233, 235 (Tex. Crim. App. 2000); Wright v. State, 28 S.W.3d 526, 536 (Tex. Crim. App. 2000); Rhoades v. State, 934 S.W.2d 113, 120 (Tex. Crim. App. 1996); Jenkins v. State, 912 S.W.2d 793, 808 (Tex. Crim. App. 1993)(op. on reh g); Davis v. State, 323 S.W.3d 190, (Tex. App. Dallas 2008, pet. ref d); Castaneda v. State, 135 S.W.3d 719, 723 (Tex. App. Dallas 2003, no pet.). The rationale of the rule requiring that an objection or request be specific and timely 6

13 is two-fold: 1) to notify the trial judge of the exact basis of the relief requested so as to provide him or her an opportunity to make a decision relative to that basis when he or she is in a position to do so; and 2) to afford the opponent thereof an opportunity to respond thereto in a substantive fashion. See, e.g., Reyna, 168 S.W.3d at 179; Janecka v. State, 823 S.W.2d 232, (Tex. Crim. App. 1992); Zillender v. State, 557 S.W.2d 515, 517 (Tex. Crim. App. 1977). Furthermore, preservation-of-error rules are based upon the core concept of fundamental fairness, in that, Fairness to all parties requires a party to advance his complaints at a time when there is an opportunity to respond [to] or cure them. Loredo v. State, 159 S.W.3d 920, 923 (Tex. Crim. App. 2004). Based on such considerations of fundamental fairness, no appellate court should reverse a trial court on a theory that was not raised in the trial court, especially when the trial court had no opportunity to rule upon the theory and the opponent had no opportunity to develop a full factual record relative thereto. See, e.g., State v. Bailey, 201 S.W.3d 739, 743 (Tex. Crim. App. 2006); Hailey v. State, 87 S.W.3d 118, 122 (Tex. Crim. App. 2002). When an appellant has denied the trial court any opportunity to rule on the complaint advanced later on appeal by having failed to advance that complaint below, nothing exists for the appellate court to review relative to that complaint because there is no ruling from the trial court for the appellate court to assess. See Flores v. State, 871 S.W.2d 714, 720 (Tex. Crim. App. 1993). Also, a complaining party s specific claim is preserved for appellate review only if the record reveals that the complaining party on appeal brought to the trial 7

14 court s attention the very complaint that the party is later advancing on appeal, including the specific legal ground or grounds underlying the complaint. Reyna, 168 S.W.3d at 177 n. 14, citing, Martinez v. State, 91 S.W.3d 331, 336 (Tex. Crim. App. 2002); see, e.g., State v. Mercado, 972 S.W.2d 75, (Tex. Crim. App. 1998). Under such circumstances where the complaining party has effectively failed to communicate his or her desire to the trial court, appellate courts should not hesitate to hold that the complaints advanced only on appeal have been lost. See Lankston v. State, 827 S.W.2d 907, 909 (Tex. Crim. App. 1992). APPLICATION When the trial court orally pronounced the complained-of sentences, Appellant s counsel lodged absolutely no objections thereto. (RR-3: 40-42). Accordingly, Appellant s counsel in no way asserted or even implied that the trial court had violated the objectives of the Texas Penal Code or had otherwise abused its discretion. (RR-3: 40-42). Additionally, no motion for new trial was filed in any of the cases. (CR-1: 1-59; CR- 2: 1-51; CR-3: 1-31). Accordingly, the motion-for-new-trial procedure was not employed as the vehicle or mechanism for bringing the substance of Appellant s sole identical issue to the attention of the trial court. See, e.g., Croft v. State, No CR, 1998 Tex. App. LEXIS 8104, at *3 (Tex. App. Dallas December 31, 1998, no pet.)(not designated for publication); Stovall v. State, No CR, 1997 Tex. App. LEXIS 4227, at *14 (Tex. App. Dallas August 13, 1997, no pet.)(not designated for publication). By having failed in any manner to advance in the trial court the claims contained in 8

15 his sole identical issue, Appellant has failed to preserve for this Court s review any and all such complaints. See Tex. R. App. 33.1(a)(1)(A); Jimenez, 32 S.W.3d at 235; Rhoades, 934 S.W.2d at 120; Davis, 323 S.W.3d at ; Castaneda, 135 S.W.3d at 723; Wright v. State, 930 S.W.2d 131, 133 (Tex. App. Dallas 1996, no pet.); see also, e.g., Theriot v. State, No CR, 2009 Tex. App. LEXIS 7215, at *4 (Tex. App. Dallas September 15, 2009, no pet.)(not designated for publication); Davis v. State, No CR, 2007 Tex. App. LEXIS 6019, at *1-3 (Tex. App. Dallas July 31, 2007, no pet.)(not designated for publication); Oh v. State, No CR, 2006 Tex. App. LEXIS 2358, at *1-2 (Tex. App. Dallas March 29, 2006, pet. ref d)(not designated for publication). Finally, since Appellant failed to comply with the rule requiring the lodging of a contemporaneous and specific objection or request in the trial court, this Court should without any hesitancy whatsoever and in full accord with the core concept of basic fairness deem the substantive content of Appellant s sole identical issue waived by Appellant s failure to accord the trial court an opportunity to rule on the complaints that are now being advanced on appeal. See Loredo, 159 S.W.3d at 923; Flores, 871 S.W.2d at 720; Lankston, 827 S.W.2d at 909; Janecka, 823 S.W.2d at ; Zillender, 557 S.W.2d at 517. Additionally, the State disagrees in no uncertain terms with Appellant s contentions that he should be relieved from the consequences of his failure to comply with the preservation-of-error rules because punishment was the only issue and because he requested that the trial court place him on probation with an opportunity to receive rehabilitation and 9

16 introduced his own testimony and that of his mother in support of his request. (Appellant s Brief at pp. 3-5). Appellant despite his desire for probation and opportunity for rehabilitation never contended in the trial court that any sentence of incarceration would constitute an abuse of discretion by the trial court and/or a violation of the objectives of the Texas Penal Code. (CR-1: 1-59; CR-2: 1-51; CR-3: 1-31; RR-3: 1-42). Furthermore, Appellant s reliance upon Tex. R. Evid. 103(a) is entirely misplaced. (Appellant s Brief at p. 3). By its very terms, Tex. R. Evid. 103(a) applies to a ruling which admits or excludes evidence. Tex. R. Evid. 103(a). Accordingly, that rule has no application to the trial court s imposition of Appellant s sentences because the trial court s imposition of Appellant s sentences neither admitted nor excluded any evidence. For all the aforementioned reasons, Appellant failed to preserve for this Court s review the substantive content of his sole identical issue because Appellant s desire for probation and rehabilitation and the testimony he developed in support thereof failed in any way to inform the trial court of the very same legal complaint that the imposition of any sentence or sentences of incarceration would constitute an abuse of discretion and/or a violation of the objectives of the Texas Penal Code. See, e.g., Reyna, 168 S.W.3d at 177 n. 14; Martinez, 91 S.W.3d at 336; Mercado, 972 S.W.2d at 76-78; see also, e.g., Espinoza v. State, No CR, 2009 Tex. App. LEXIS 6803, at *3 (Tex. App. Corpus Christi August 27, 2009, no pet.)(not designated for publication)( Moreover, the complaint Espinoza now raises on appeal was not apparent from his request for drug treatment and probation. ). 10

17 While the substantive content of Appellant s sole identical issue should be deemed waived, should this Court decide to address the substantive complaints contained in Appellant s sole identical issue, the record fails to show that the trial court abused its discretion or violated the objectives of the Texas Penal Code by imposing the complained-of sentences of incarceration. MERITS LEGAL AUTHORITY The Texas Penal Code contains a list of six objectives that the penal code in its entirety is intended to achieve. See Tex. Pen. Code 1.02(1)-(6). A trial court s decision as to the assessment of punishment is reviewed under an abuse of discretion standard. See Jackson v. State, 680 S.W.2d 809, 814 (Tex. Crim. App. 1984). Additionally, the allowable discretion of the trial judge in assessing a term of years is limited only by the maximum provided by law. Tamminen v. State, 653 S.W.2d 799, 803 (Tex. Crim. App. 1983). A trial court judge does not abuse his or her discretion unless the decision he or she reaches is reached without reference to any guiding rules or principles such that it is so arbitrary and capricious as to fall outside the zone within which reasonable minds can disagree. See, e.g., Green v. State, 934 S.W.2d 92, 102 (Tex. Crim. App. 1996), cert. denied, 520 U.S. 1200, 117 S.Ct (1997); Lewis v. State, 911 S.W.2d 1, 7 (Tex. Crim. App. 1995); Powell v. State, 898 S.W.2d 821, 826 (Tex. Crim. App. 1994), cert. denied, 516 U.S. 991, 116 S.Ct. 524 (1995); Rogers v. State, 853 S.W.2d 29, 32 (Tex. Crim. App.1993); Montgomery v. State, 11

18 810 S.W.2d 372, 380 (Tex. Crim. App. 1991). In the context of assessing punishment, a trial court judge does not abuse his or her discretion unless the record reveals that the trial court judge reached his or her punishment decision without having any factual basis for the decision reached. See Jackson, 680 S.W.2d at 814; see also Stock v. State, No CR, 1999 Tex. App. LEXIS 8302, at *1-2 (Tex. App. Dallas November 5, 1999, pet. ref d)(not designated for publication)( We overrule [appellant s] second point because the sentence was within the proper range of punishment and there was evidence to support that punishment. ), cert. denied, 531 U.S. 874, 121 S.Ct. 178 (2000); Webb v. State, No CR, 1998 Tex. App. LEXIS 2412, at *2 (Tex. App. Dallas August 24, 1998, no pet.)(not designated for publication). Also, deciding what punishment to assess is a normative process, not intrinsically factbound. Murphy v. State, 777 S.W.2d 44, 63 (Tex. Crim. App. 1989)(op. on reh g); see Procyshyn v. State, No CR, 1998 Tex. App. LEXIS 7953, at *5-6 (Tex. App. Dallas December 28, 1998, no pet.)(not designated for publication). As long as a sentence assessed by the trial court falls within the statutory range applicable to the crime in question, the punishment is not excessive, cruel, or unusual. See, e.g., Harris v. State, 656 S.W.2d 481, 486 (Tex. Crim. App. 1983); Castaneda, 135 S.W.3d at 723; Kirk v. State, 949 S.W.2d 769, 771 (Tex. App. Dallas 1997, pet. ref d). Moreover, a trial court judge who sentences a defendant to a punishment that falls within the statutory range of punishment applicable to the crime of conviction acts in full compliance with the 12

19 objectives of the Texas Penal Code. See Carpenter v. State, 783 S.W.2d 232, (Tex. App. Dallas 1989, no pet.); see also, Hollywood v. State, No CR, 2003 Tex. App. LEXIS 726, at *5 (Tex. App. Dallas January 24, 2003, no pet.)(not designated for publication)( Moreover, the trial court assessed a sentence within the statutory range for aggravated robbery which complies with the penal code s objectives. )(citations omitted); Hicks v. State, No CR, 1999 Tex. App. LEXIS 7865, at *2 (Tex. App. Dallas October 22, 1999, no pet.)(not designated for publication)( Moreover, by sentencing appellant to a punishment within the punishment range for his offense, the trial court complied with the objectives of the penal code. )(citations omitted). APPLICATION Appellant concedes that his sentences are within the enhanced statutory ranges applicable to the crimes he admitted having committed. (Appellant s Brief at p. 6). Appellant s sole identical issue, however, is based on a combination of underlying arguments. (Id. at pp. 6-7). Appellant argues that, There is nothing in the record to suggest that Appellant is beyond redemption or that he could not be rehabilitated. (Id. at p. 6). Appellant cites the evidence of his trauma of having seen his younger brother killed by a DWI driver and his drug problem, which had never been treated. (Id.). Appellant also asserts that incarceration in his cases does not meet the objective of rehabilitating him and that incarcerating him for the periods of 10 and 20 years is merely punitive and failed to further the Penal Code s 13

20 goal of rehabilitation. (Id. at pp. 6-7). Appellant also contends that the sentences of incarceration violated the objectives of the Texas Penal Code because the sentences failed to recognize the difference in rehabilitative possibilities represented by Appellant. (Id. at p. 6). While Appellant did introduce his own testimony and that of his mother in support of his desire for probation, the trial court judge acting as sole trier of fact and arbiter of witness credibility was not required to find persuasive on any issue any of the testimony Appellant developed, especially as to whether Appellant should be placed on probation. See, th e.g., Williams v. State, 958 S.W.2d 844, 845 (Tex. App. Houston [14 Dist.] 1997, pet. ref d)(op. on reh g)( But, when the trial court assesses punishment, the judge acts as factfinder. ); see also, Reissig v. State, 929 S.W.2d 109, 113 (Tex. App. Houston [14 th Dist.] 1996, pet. ref d)(trial court acting as fact finder not required to believe even uncontradicted assertions of witness); Messer v. State, 757 S.W.2d 820, 828 (Tex. App. st Houston [1 Dist.] 1988, pet. ref d). Moreover, as a general principle of law, no entitlement to probation existed under the circumstances presented herein. See, e.g., Hugill v. State, 757 th S.W.2d 455, 458 (Tex. App. Houston [14 Dist.] 1990, pet. ref d). Also, a review of the record reveals the presence of considerable evidence upon which the trial court could have reasonably chosen to believe that Appellant was not a credible witness, failed to constitute a good candidate for probation, and should receive any potential treatment within the confines of the prison system. 14

21 As noted earlier, Appellant disputed the testimony of Herrera by stating that no robbery had been committed and by effectively accusing Herrera of having not only framed Appellant for a crime, but also of having committed aggravated perjury in her testimony. (RR-3: 23-25). The trial court made certain that the record reflected that the trial court had determined that Herrera was the credible witness, not Appellant. (RR-3: 41-42). Additionally, the trial court also made clear that the sentencing decisions reached were based on the trial court s efforts to take into account the needs of the community to be protected from Appellant. (RR-3: 41). Furthermore, the trial court was provided with more than enough evidence for choosing to impose the sentences of incarceration and for choosing not to believe Appellant s assurances that he would refrain from using drugs. Addressing the latter matter first, the trial court heard Appellant in effect claim that he had no control over his body when he was hooked on drugs. (RR-3: 25). From this testimony alone, the trial court could have reasonably concluded that Appellant would excuse any relapses he might have by blaming the drugs and his addiction to them rather than his having chosen to engage in the using of those drugs. In light of Appellant s testimonial claims that he had committed all of his crimes in order to support his drug habit, the trial court could have doubted Appellant s testimonial claims of being willing to abide by whatever the rules of probation would be, especially since Appellant had not only failed to complete his federal probation, but had had his federal 15

22 probation revoked after only a period of 6 months. (RR-3: 15-16, 26). Also, the trial court was entitled to view Appellant s admissions of having committed his crimes to support his drug habit as tangible proof of the dangers to society that accompany the use of illegal drugs, which such dangers have been expressly and repeatedly recognized in Texas jurisprudence. See, e.g., Acosta v. State, 160 S.W.3d 204, 212 (Tex. App. Fort Worth 2005, no pet.), citing, Thomas v. State, 916 S.W.2d 578, 583 (Tex. App. San Antonio 1996, no pet.); Hubbard v. State, 770 S.W.2d 31, 42 (Tex. App. Dallas 1989, pet. ref d). Based on all the aforementioned evidence, the trial court had overwhelming grounds for concluding that Appellant was not a good candidate for yet another placement on probation and that any rehabilitation Appellant might be willing to avail himself of should occur within the confines of prison, where Appellant would have far fewer opportunities for engaging in daily drug use and almost no opportunity for pointing a firearm at any infants. Furthermore, the record was undisputed that Appellant had multiple prior convictions, including two final, sequential felony convictions for aggravated robbery and aggravated assault. (CR-1: 38, 41-45; CR-2: 36-37, 38-42; CR-3: 4, 18-22; RR-3: 27). Since the Reporter s Record and the trial court s judgments make clear that the trial court found the State s multiple enhancement allegations true, any review of the trial court s assessment of Appellant s sentences must take into account Appellant s well-established history of criminal conduct. (CR-1: 47-48; CR-2: 44-45; CR-3: 23-24). See, e.g., Thompson v. State, No CR, 2003 Tex. App. LEXIS 10438, at *6 (Tex. App. Fort Worth December 11, 2003, 16

23 no pet.)(not designated for publication)( Appellant, however, had previously been convicted of felony offenses. His punishment, then, was dictated not merely by his failure to register but also by his status as an habitual felony offender. ). Also, Appellant s argument seems to assume that the admittedly-admirable and important goal of rehabilitation expressed in the Texas Penal Code somehow operates to override the other equally-admirable and important goals expressed therein. However, the State has not found and Appellant has not cited any case assigning to the goal of rehabilitation greater status than that of any of the other goals listed in Tex. Pen. Code 1.02(1)-(6). From the very structure of Tex. Pen. Code 1.02(1)-(6), the goal of rehabilitation is, at most, ranked second to the deterrent influence of the penalties provided for in the Texas Penal Code as a whole. Furthermore, the goal of rehabilitation literally is not even the first goal listed under subsection (1), which sets out the objective of insuring the public safety. Tex. Pen. Code 1.02(1)(A). As such, it cannot accurately be said that the admittedly important and admirable goal of rehabilitation is somehow more important then the goal of deterrence. Indeed, since the goal of rehabilitation is listed under the greater category of insuring the public safety, it seems that the goal of rehabilitation attains any importance that it may potentially have only when it can be said to further insure the public safety. In regard to these legal principles, the trial court s comments made clear that the trial court assessed the complained-of sentences in an effort to insure the safety of the public. (RR-3: 41). 17

24 Accordingly, the sentences assessed by the trial court are in full and complete harmony with the objectives set out in the Texas Penal Code. Since the trial court heard all of the testimony (including that of Appellant and of his mother), there is absolutely no way the trial court failed to consider probation as a punishment option or rehabilitation as a goal of the penal system. Based on the record as a whole, the only reasonable inference is that the trial court rationally concluded that Appellant was not a good candidate for probation. Moreover, the record was undisputed that Appellant been placed on probation in the federal court system and had failed to successfully complete that prior probation. (RR-3: 26-27). Accordingly, the State disagrees with Appellant s contention that the sentence failed to permit recognition of differences in rehabilitative possibilities among offenders. (Appellant s Brief at pp. 6-7). Due to the undisputed fact that Appellant had failed to successfully complete his prior federal probation, the record clearly shows that the trial court opted to incarcerate Appellant only after Appellant had demonstrated the non-existent nature of his chances for a successful rehabilitation of any type. In this regard, the trial court s imposition of sentences of incarceration is completely harmonious with the Texas Penal Code s goal of achieving the imposition of penalties that recognize the different levels of rehabilitation possibilities that exist among individual offenders. See Tex. Pen. Code 1.02(3). In light of all the aforementioned evidence justifying the trial court s imposition of 18

25 the complained-of sentences, Appellant s appellate claims must fail because the trial court neither abused its discretion nor violated the objectives of the Texas Penal Code by sentencing Appellant to incarceration for periods of 10 and 20 years. See, e.g., Jackson, 680 S.W.2d at 814; Carpenter, 783 S.W.2d at ; see also, e.g., Hollywood, No CR, 2003 Tex. App. LEXIS 726, at *5; Stock, No CR, 1999 Tex. App. LEXIS 8302, at *1-2; Hicks, No CR, 1999 Tex. App. LEXIS 7865, at *2; Webb, No CR, 1998 Tex. App. LEXIS 2412, at *2. Accordingly, Appellant s sole identical issue should be overruled on the merits based on all the aforementioned reasons and the legal authority cited in conjunction therewith. CONCLUSION AND PRAYER Appellant suffered no reversible error. Accordingly, the State prays that this Court will affirm the entirety of each and every one of the trial court s judgments of conviction. Respectfully submitted, CRAIG WATKINS Criminal District Attorney Dallas County, Texas MICHAEL R. CASILLAS, Assistant Criminal District Attorney, Chief Prosecutor - Appellate Division 133 N. Riverfront Blvd., LB 19 Dallas, Texas (214) /FAX (214) State Bar No

26 CERTIFICATE OF SERVICE A true copy of the State's Response Brief in paper format has been served on opposing counsel, the Hon. Brian W. Portugal, Assistant Dallas County Public Defender, by delivering said copy by hand to The Office of the Dallas County Public Defender, 133 N. Riverfront th Blvd., LB2, Dallas, Texas 75207, no later than the 25 day of August 2011 and by transmitting an electronically-formatted copy of said brief via no later than the 25 th day of August MICHAEL R. CASILLAS 20