STATE'S RESPONSE BRIEF

Transcription

1 IN THE COURT OF APPEALS FOR THE FIFTH COURT OF APPEALS DISTRICT RANDY KIARA ASHDON STARKS, CR APPELLANT V. NOS CR THE STATE OF TEXAS, APPELLEE CR 5th Court of Appeals FILED: 06/06/ :00 Lisa Matz, Clerk APPEALED FROM CAUSE NUMBERS F , F , AND F IN THE CRIMINAL DISTRICT COURT NUMBER 3 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, The privilege of 133 N. Riverfront Blvd., LB 19 presenting oral argument Dallas, TX is not requested. (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 ISSUE The contentions in Appellant s sole 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 various sentences of incarceration. 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 were/are in any way violative of the objectives of the Texas Penal Code. WAIVER...5 LEGAL AUTHORITY...5 APPLICATION...7 MERITS...10 LEGAL AUTHORITY...10 APPLICATION...13 CONCLUSION AND PRAYER...22 CERTIFICATE OF SERVICE...23 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) Carpenter v. State, 783 S.W.2d 232 (Tex. App. Dallas 1989, no pet.) ,20 Carrillo v. State, 98 S.W.3d 789 (Tex. App. Amarillo 2003, pet. ref d) Castaneda v. State, 135 S.W.3d 719 (Tex. App. Dallas 2003, no pet.)... 6,7,9,11,13,14 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) ,7 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) ,10 Green v. State, 934 S.W.2d 92 (Tex. Crim. App. 1996), cert. denied, 520 U.S (1997)....11,12 Hailey v. State, 87 S.W.3d 118 (Tex. Crim. App. 2002) Hanlan v. State, Nos CR, 2007 Tex. App. LEXIS 3307 (Tex. App. Dallas April 27, 2007, no pet.)(not designated for publication) ii

4 Harris v. State, 656 S.W.2d 481 (Tex. Crim. App. 1983) Hicks v. State, No CR, 1999 Tex. App. LEXIS 7865 (Tex. App. Dallas October 22, 1999, no pet.)(not designated for publication) ,20 Hollywood v. State, No CR, 2003 Tex. App. LEXIS 726 (Tex. App. Dallas January 24, 2003, no pet.)(not designated for publication) ,20 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) ,16 Jackson v. State, 680 S.W.2d 809 (Tex. Crim. App. 1984) ,13,20 Janecka v. State, 823 S.W.2d 232 (Tex. Crim. App. 1992) ,10 Jenkins v. State, 912 S.W.2d 793 (Tex. Crim. App. 1993)(op. on reh g) ,7 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) Lankston v. State, 827 S.W.2d 907 (Tex. Crim. App. 1992) ,10 Lewis v. State, 911 S.W.2d 1 (Tex. Crim. App. 1995) Loredo v. State, 159 S.W.3d 920 (Tex. Crim. App. 2004) ,10 Martinez v. State, 91 S.W.3d 331 (Tex. Crim. App. 2002) ,11 State v. Mercado, 972 S.W.2d 75 (Tex. Crim. App. 1998) ,11 Messer v. State, 757 S.W.2d 820 (Tex. App. st Houston [1 Dist.] 1988, pet. ref d) ,17 Montgomery v. State, 810 S.W.2d 372 (Tex. Crim. App. 1991) iii

5 Murphy v. State, 777 S.W.2d 44 (Tex. Crim. App. 1989)(op. on reh g) 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 (1995)...13 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)....15,17 Reyna v. State, 168 S.W.3d 173 (Tex. Crim. App. 2005) ,7,8,11 Rhoades v. State, 934 S.W.2d 113 (Tex. Crim. App. 1996) ,7,9 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 (2000)... 13,20 Stovall v. State, No CR, 1997 Tex. App. LEXIS 4227 (Tex. App. Dallas August 13, 1997, no pet.)(not designated for publication) ,11 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) Thomas v. State, 916 S.W.2d 578 (Tex. App. San Antonio 1996, no pet.) iv

6 Thompson v. State, No CR, 2003 Tex. App. LEXIS (Tex. App. Fort Worth December 11, 2003, no pet.)(not designated for publication) Webb v. State, No CR, 1998 Tex. App. LEXIS 2412 (Tex. App. Dallas August 24, 1998, no pet.)(not designated for publication) ,20 Williams v. State, 958 S.W.2d 844 (Tex. App. th Houston [14 Dist.] 1997, pet. ref d)... 15,17 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) ,10 ARTICLES, CODES, RULES, and CONSTITUTIONS: Tex. Pen. Code 1.02(1)-(6)...12,18 Tex. Pen. Code 1.02(1)(A)...19 Tex. Pen. Code 1.02(3) Tex. R. App. P. 33.1(a)(1)(A)... 6,9 Tex. R. App. P Tex. R. Evid. 103(a)...10 v

7 TO THE HONORABLE COURT OF APPEALS: The instant brief in response to the brief of Appellant, Randy Kiara Ashdon Starks, is filed on behalf of Craig Watkins, the Criminal District Attorney of Dallas County, Texas. SUMMARY OF THE CASE Appellant was charged in separate indictments with having committed three separate 1 offenses. (CR-1: 4; CR-2: 5; CR-3: 5). In the first two of the aforementioned indictments, Appellant was charged with multiple aggravated robberies in which he had used or exhibited a deadly weapon, to-wit: a firearm. (CR-1: 4; CR-2: 5). In the third aforementioned indictment, Appellant was charged with unauthorized use of a motor vehicle (UUMV). (CR- 3: 5). Without the benefit of any agreement as to the punishments that would be assessed, Appellant pled guilty to all of the offenses charged and executed judicial confessions in regard to each of the three charges. (CR-1: 7, 10-14; CR-2: 9-11, 36-40; CR-3: 8, 26-30; RR-2: 1-12; RR-3: 5-65). The trial court eventually conducted a punishment hearing and heard the testimony of two of Appellant s victims, of a juvenile probation officer, of a police officer assigned to the gang unit, of Appellant s mother, of one of Appellant s friends, and of Appellant himself. (RR-3: 1-110). After hearing the testimony of all of the aforementioned witnesses, the trial court 1 While the abbreviation CR-1 refers to the Clerk s Record in cause number F , the abbreviations CR-2 and CR-3 refer respectively to the Clerk s Records that correspond to cause numbers F and F

8 found Appellant guilty of the offenses charged and assessed Appellant s punishments at incarceration in the state jail for one year on the UUMV charge and imprisonment for a period of 20 years in each of the aggravated robbery cases. (CR-1: 7, 16-17; CR-2: 9-11, 42-43; CR-3: 8, 32-33; RR-3: ). No objections were lodged either when the trial court orally pronounced the aforementioned sentences or when the aforementioned sentences were formally imposed. (RR-3: ). While a motion for new trial was filed in each case, those motions alleged only that the verdict was contrary to the law and to the evidence. (CR- 1: 20; CR-2: 45; CR-3: 36). STATEMENT OF FACTS Jimmy Nguyen came home from work on July 24, 2010, only to have Appellant and his cohort accost him as he tried to enter his residence. (RR-3: 10-13). Appellant and his cohort forced Nguyen to grant them entry into his residence where Appellant and his cohort proceeded to rob Nguyen and his family members at gun point. (RR-3: 14-17, 24-30). Nguyen established that his grandmother and his nine-year-old sister had also been present when Appellant committed the home invasion robbery. (RR-3: 15, 17). Nguyen s relative Lyna, who was also one of the victims of the home invasion robbery, established that Appellant seemed to be the one who was in control while the crime was being committed. (RR-3: 36). Both of the Nguyens informed the court of how Appellant s crime had impacted their lives in a negative and ongoing manner. (RR-3: 21, 30-31). According to a probation officer who had supervised Appellant when Appellant was 2

9 a juvenile, Appellant was first placed on juvenile probation at the age of 13 for the crime of credit card abuse. (RR-3: 39). According to the probation officer, Appellant started committing violations of the terms and conditions of his probation no later than two weeks after having been placed on probation. (RR-3: 40). Appellant was eventually placed in boot camp, and still had problems complying with the terms and conditions of his probation even after having successfully completed his time in boot camp. (RR-3: 40-41). At one point after he was released from his juvenile probation, Appellant no later than a month after having been released committed a UUMV, which resulted in Appellant s placement in the Texas Youth Commission (TYC). (RR-3: 44, 47-48). The probation officer was also aware that Appellant had at some point joined a gang. (RR-3: 44). Gang unit police officer Craig Redden established that Appellant had been identified as a gang member. (RR-3: 48-52). Officer Redden stated that the police records had shown that Appellant had identified himself as a gang member and that Appellant had a tattoo indicative of his membership in a particular gang. (RR-3: 51-53). Officer Redden informed the court that Appellant s gang of choice consistently engaged in violent crimes over a period of many years and that Appellant s gang of choice engaged in drug dealing, aggravated assaults, aggravated robberies, murders, thefts, and misdemeanor-level assaults. (RR-3: 53). Appellant s mother established that Appellant had admitted to her that he had been smoking marijuana or drinking a beverage called Four Loco when he had committed his crimes. (RR-3: 73). Appellant s mother admitted that Appellant s having used a gun to 3

10 commit a UUMV was a pretty serious offense. (RR-3: 74). Appellant s mother further admitted that she herself was aware that Appellant had pled guilty to the felony offense of having injured a TYC officer. (RR-3: 77-78). Appellant admitted that he was guilty and claimed that he had joined a gang because he had been looking for a good role model. (RR-3: 91-92). Appellant claimed that he was addicted to the drugs he had been taking and admitted that he had used alcohol and marijuana even while he was taking his own prescription medications. (RR-3: 93). Regarding the home invasion robbery of the Nguyens residence, Appellant admitted that he had told a detective multiple different stories regarding who was with him when he committed the offense. (RR-3: 107). Appellant admitted that he had committed a UUMV on July 27, 2010, had been released on bond, and had committed a new offense the very next day. (RR-3: 96). In regard to his crime against a TYC officer, Appellant tried to blame the officer, but ultimately admitted that he had pled guilty to the crime he had committed against the officer and had received a sentence of incarceration for a period of 3 years. (RR-3: ). 4

11 SUMMARY OF STATE'S RESPONSIVE ARGUMENTS State's Reply To Appellant's Sole Issue: The contentions in Appellant s sole 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 various sentences of incarceration. 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 were/are in any way violative of the objectives of the Texas Penal Code. STATE'S REPLY TO APPELLANT S SOLE ISSUE: Appellant s contentions: In his sole issue, Appellant contends that the trial court abused its discretion by sentencing Appellant to terms of 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, 1, 8-13). State s responses: The contentions in Appellant s sole 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 various sentences of incarceration. Accordingly, no such claims have been preserved for this Court s appellate 5

12 review. Alternatively, the record does not show that Appellant s sentences of incarceration were/are in any way violative of 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.). Moreover, claims that a punishment or punishments imposed violated either the right to be free from cruel and unusual punishment under the United States Constitution or the objectives of the Texas Penal Code are also subject to being waived for appellate review if they are not preserved in the trial court by 6

13 compliance with the rules regarding preservation of error. See Rhoades, 934 S.W.2d at 120; Jenkins, 912 S.W.2d at 808; 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.). The rationale of the rule requiring that an objection or request be specific and timely 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 7

14 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 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: ). As such, 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: ). While a motion for new trial was filed in each case, each motion alleged only that the verdict was contrary to the law and to the evidence. (CR-1: 20; CR-2: 45; CR-3: 36). Accordingly, the motion-for-new-trial procedure was not employed as the vehicle or mechanism for bringing the substance of Appellant s sole issue to the attention of the trial 8

15 court. See, e.g., Castaneda, 135 S.W.3d at 723 n.1; 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)(motion for new trial allegation that the verdict was contrary to the law and the evidence was insufficient to notify the trial court regarding any complaint about sentencing). By having failed in any manner to advance in the trial court the claims contained in his sole 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; Castaneda, 135 S.W.3d at 723; Wright, 930 S.W.2d at 133; 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); Hanlan v. State, Nos CR, 2007 Tex. App. LEXIS 3307, at *1-2 (Tex. App. Dallas April 27, 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 9

16 whatsoever and in full accord with the core concept of basic fairness deem the substantive content of Appellant s sole issue waived by Appellant s failure to have afforded 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 relative to his crimes and provide him with an opportunity to attend drug treatment and even introduced testimony in support of his requests. (Appellant s Brief at pp. 9-10). Appellant despite his desire for probation in all his cases and an opportunity for treatment/rehabilitation and the testimony he introduced in support of his requests never contended in the trial court that the trial court would be abusing its discretion by imposing any sentences of incarceration or that any sentences of incarceration would be violative of the objectives of the Texas Penal Code. (CR-1: 20; CR- 2: 45; CR-3: 36; RR-3: ). Furthermore, Appellant s reliance upon Tex. R. Evid. 103(a) is entirely misplaced. (Appellant s Brief at p. 9). 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 10

17 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 issue because Appellant s desire for probation in each of his cases and an opportunity to receive treatment relative to his alleged abuse of drugs 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 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. ). Likewise, Appellant is incorrect in his argument implying that his specific complaints were preserved by the very general language in his motions for new trial alleging that the verdicts of the trial court had been contrary to the law and the evidence. (Appellant s Brief at p. 10). See, e.g., Castaneda, 135 S.W.3d at 723 n.1; Stovall, No CR, 1997 Tex. App. LEXIS 4227, at *14 (motion for new trial allegation that the verdict was contrary to the law and the evidence was insufficient to notify the trial court regarding any complaint about sentencing). Also, while the State acknowledges that the aforementioned Stovall opinion does not constitute binding authority due to its unpublished status, reaching a conclusion different from the one reached there 11

18 carries a risk of potentially constituting an exercise in unreasoned inconsistency. See Tex. R. App. P. 47.7; Carrillo v. State, 98 S.W.3d 789, 794 (Tex. App. Amarillo 2003, pet. ref d). While the substantive content of Appellant s sole issue should be deemed waived, should this Court decide to address the substantive complaints contained in Appellant s sole 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

19 (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 (1995); Rogers v. State, 853 S.W.2d 29, 32 (Tex. Crim. App.1993); Montgomery v. State, 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 (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 13

20 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 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 statutory range applicable to the crimes he admitted having committed. (Appellant s Brief at p. 11). Appellant s sole issue, however, is based on a combination of underlying arguments. (Id. at pp ). Appellant argues that, Here, it is undisputed that Appellant suffered from drug addiction and mental health issues. (Id. at p. 11). Appellant cites the evidence that he sought educational help on his own, that he knew he needed to find a better path in life, and that he knew he needed to refrain from drugs and from having contact with his prior 14

21 associates. (Id.). Appellant contends that, based on all the facts, it can be concluded that Appellant was a decent candidate for probation. (Id. at p. 12). Appellant also argues that, There is no reason to believe that, if Appellant received proper help, including medication, drug treatment and education, he would not be successful on probation. (Id.). Based on all the aforementioned evidence and argument, Appellant contends that the prison sentences failed to meet the objective of rehabilitating Appellant and failed to permit recognition of [the] differences in rehabilitative possibilities among offenders. (Id.). While there was evidence upon which the trial court could have chosen to impose probations and/or lesser sentences and while Appellant did introduce his testimony and that of his witnesses in support of his desire for probations and opportunities to receive treatment, the trial court judge acting as sole trier of fact and arbiter of witness credibility was not required to find any of Appellant s presentation persuasive on any issue, especially as to whether Appellant should be placed on probation. See, e.g., Williams v. State, 958 S.W.2d th 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 th S.W.2d 109, 113 (Tex. App. Houston [14 Dist.] 1996, pet. ref d)(trial court acting as fact finder not required to believe even uncontradicted assertions of witness); Messer v. State, st 757 S.W.2d 820, 828 (Tex. App. Houston [1 Dist.] 1988, pet. ref d). Moreover, as a general principle of law, no entitlement to any probation existed under the circumstances presented herein. See, e.g., Hugill v. State, 757 S.W.2d 455, 458 (Tex. App. Houston [14 th 15

22 Dist.] 1990, pet. ref d). Furthermore, a review of the record reveals the presence of considerable evidence upon which the trial court could have reasonably chosen to believe that Appellant failed to constitute a good candidate for any probations. In regard to this last point, the trial court was provided with more than enough evidence for choosing to impose all the sentences of incarceration. While Appellant claimed to be a drug addict, he also admitted that he had voluntarily resorted to committing robberies because he had not been able to find a job. (RR-3: 93-94, 101). Appellant s mother admitted that Appellant had told her that he had committed the crimes after having smoked marijuana and consumed a beverage called Four Loco. (RR-3: 73). In regard to this point, even if Appellant committed all his crimes to facilitate his drug habit, the trial court was entitled to view the evidence of Appellant s drug usage and related crimes as tangible examples of the pernicious dangers to the health and welfare of society in general that accompany the use of illegal drugs, which such dangers have been expressly 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). Additionally, even if Appellant was telling the truth regarding his claims of how his crimes had been motivated by his desire to facilitate his drug habit, the trial court as trier of fact was not required to conclude that Appellant had to be shown any mercy 16

23 because of any addiction to drugs that Appellant might actually have. See, e.g., Williams, 958 S.W.2d at 845; Reissig, 929 S.W.2d at 113; Messer, 757 S.W.2d at 828. Similarly, Appellant s criminal history, the nature of his many crimes, and the frequency with which he committed the most-recent crimes provided the trial court overwhelming grounds for imposing the sentences of incarceration. Appellant committed credit card abuse at the age of 13. (RR-3: 39). Appellant initially failed to successfully complete his juvenile probation and was sent to boot camp. (RR-3: 40-41). A month after he finally completed his probation successfully, Appellant committed a UUMV and was sent to TYC. (RR-3: 43, 47-48). Appellant pled guilty to having committed a crime against a TYC officer. (RR-3: 43, 78, ). Furthermore, Appellant committed the three instant offenses on July 23, 2010, July 24, 2010, and July 28, (CR-1: 4, 14; CR-2: 5, 40; CR-3: 5, 30; RR-2: 1-12; RR-3: 91). Appellant admitted that he was arrested on July 27, 2010 for a UUMV, was released on bond, and committed a new crime the very next day. (RR-3: 96). While Appellant blamed the victim of one of his crimes for the discharge of a firearm that occurred during the crime, Appellant admitted that a gun he was wielding had discharged as part of his having a disagreement with a man to whom he was selling marijuana. (RR-3: 97-98). Appellant s aforementioned blaming of the victim was very similar to the way Appellant blamed the TYC officer for the crime to which Appellant pled guilty. (RR-3: ). Based on all the aforementioned evidence, the trial court had overwhelming grounds 17

24 for concluding that Appellant was not a good candidate for any probations and that any rehabilitation Appellant might be willing to avail himself of should occur within the confines of prison, where Appellant would have fewer opportunities for engaging in drug use and committing home-invasion robberies and/or the crime of UUMV. As noted earlier, the record was undisputed that Appellant had an extensive criminal history. Accordingly, any review of the trial court s assessment of Appellant s sentences must take into account Appellant s criminal record as a whole. See, e.g., Thompson v. State, No CR, 2003 Tex. App. LEXIS 10438, at *6 (Tex. App. Fort Worth December 11, 2003, 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. ). Finally, Appellant s argument seems to assume that the admittedly-admirable and very important goal of rehabilitation expressed in the Texas Penal Code somehow operates to override the other equally-admirable and very important goals expressed therein. However, the State has not found and Appellant has not cited any case assigning to the goal of rehabilitation any position of privilege relative to 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 18

25 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. Since the trial court heard all of the testimony, there is absolutely no way the trial court failed to consider probation as a punishment option relative to Appellant s cases 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 any probations. In light of Appellant s extensive criminal history (which included his having been convicted of a crime while in TYC and his commission of a crime a day after having been released on bond relative to another crime he had committed), the record was undisputed that Appellant had repeatedly chosen to return to using drugs and to committing other crimes with a frequency that can only be described accurately as least troubling, if not alarming. Accordingly, the State disagrees with Appellant s contention that the sentences failed to permit recognition of the differences in rehabilitative possibilities among offenders. (Appellant s Brief at p. 12). Due to the undisputed facts that Appellant had chosen to use drugs repeatedly and had chosen repeatedly to commit numerous crimes that adversely 19

26 impacted multiple victims and that demonstrated his disrespect for authority and society, 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 sentences of incarceration are in complete accord 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 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 imposing the multiple sentences of incarceration. 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 issue should be overruled on the merits based on all the aforementioned reasons and the legal authority cited in conjunction therewith. 20

27 CONCLUSION AND PRAYER Appellant suffered no reversible error. Accordingly, the State prays that all of the trial court s judgments of conviction will be affirmed in all respects. 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

28 CERTIFICATE OF SERVICE A true copy of the State's Response Brief has been served on opposing counsel, the Hon. Riann C. Moore, Assistant Dallas County Public Defender, by delivering said copy by hand to the Office of the Dallas County Public Defender, 133 N. Riverfront Blvd., LB2, th Dallas, Texas 75207, no later than the 8 day of June 2012 and by transmitting an electronically-formatted copy of the instant State s Response Brief via transmission th no later than the 8 day of June MICHAEL R. CASILLAS 22