Christopher Mabe v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: July 27, 2022
• Docket: 10-21-00282-CR
• Status: Published

Opinion

IN THE TENTH COURT OF APPEALS

No. 10-21-00282-CR No. 10-21-00283-CR

CHRISTOPHER MABE, Appellant v.

THE STATE OF TEXAS, Appellee

From the 40th District Court Ellis County, Texas Trial Court Nos. 42608CR & 42609CR

MEMORANDUM OPINION

Appellant, Christopher Mabe, was convicted of two counts of aggravated sexual

assault of a child. See TEX. PENAL CODE ANN. § 22.021. In two issues in appellate cause

numbers 10-21-00282-CR and 10-21-00283-CR, Mabe contends that: (1) the trial court

erred by failing to hold a bifurcated sentencing hearing and allow appellant to present

mitigating evidence; and (2) that appellant’s sentence is unlawfully disproportionate. We

affirm the trial court’s judgments in both appellate cause numbers. Background

Appellant was charged in two indictments with aggravated sexual assault of a

child. See id. Pursuant to a plea agreement with the State, Mabe pleaded guilty to both

charges. The trial court accepted Mabe’s guilty pleas, deferred an adjudication of guilt in

each case, and placed Mabe on community supervision for ten years with a $2,000 fine in

each case.

Thereafter, the State filed motions to adjudicate guilt in each case, alleging that

Mabe violated numerous conditions of his community supervision. The trial court

conducted a hearing on the State’s motions to adjudicate, and at the conclusion of the

hearing, the trial court found that the allegations contained in the State’s motions to

adjudicate were true. The trial court revoked Mabe’s community supervision and

adjudicated him guilty of the two aggravated-sexual-assault-of-a-child offenses. The trial

court then asked:

[THE COURT]: At this time does the defendant have any reason why sentence should not be pronounced?

[DEFENSE ATTORNEY]: No, Judge.

[THE COURT]: Does the defendant have anything to say before the trial court pronounces sentence here in open court?

The trial court sentenced Mabe to life imprisonment in both cases and ordered the

sentences to run consecutively. When the trial court asked if any further clarification was

Mabe v. State Page 2 necessary or if there was “anything further,” defense counsel responded, “Nothing

further, Judge.” Thereafter, defense counsel filed a motion to withdraw from

representing Mabe. The trial court granted defense counsel’s motion to withdraw and

appointed Mabe an attorney to pursue an appeal to this Court.

Mabe’s appointed-appellate counsel filed a motion for new trial, contending that

the trial court erred by failing to conduct a sentencing hearing before pronouncing

sentence and that the consecutive sentences violated the Eighth Amendment of the

United States Constitution and article I, section 13 of the Texas Constitution because the

sentences are grossly disproportionate to the offenses. See U.S. CONST. amend. VIII; see

also TEX. CONST. art. I, § 13. Mabe’s motion for new trial was overruled by operation of

law. See TEX. R. APP. P. 21.8(a), (c).

Bifurcated Sentencing Hearing

In his first issue in both appellate cause numbers, Mabe contends that the trial

court erred by failing to conduct a bifurcated sentencing hearing to allow appellant to

present mitigating evidence. We hold that Mabe waived any error associated with the

failure to hold a bifurcated hearing.

As noted above, the trial court conducted a hearing on the State’s motion to

adjudicate and later found the allegations contained in the State’s motions to adjudicate

to be true, revoked Mabe’s community supervision, and found him guilty of the

underlying offenses of aggravated sexual assault of a child. Rather than immediately

Mabe v. State Page 3 pronouncing the sentences in each case, the trial court asked if there was “any reason

why sentence should not be pronounced.” Defense counsel responded, “No, Judge.”

Defense counsel also informed the trial court that the defendant did not have anything to

say prior to the pronouncement of the sentences.

“[T]he defendant is entitled to a punishment hearing after the adjudication of guilt,

and the trial judge must allow the accused the opportunity to present evidence.” Issa v.

State, 826 S.W.2d 159, 161 (Tex. Crim. App. 1992) (per curiam); see TEX. CODE CRIM. PROC.

ANN. art. 42A.110(a) (“After an adjudication of guilt, all proceedings, including

assessment of punishment, pronouncement of sentence, granting of community

supervision, and defendant’s appeal, continue as if the adjudication of guilt had not been

deferred.”); see also Euler v. State, 218 S.W.3d 88, 92 (Tex. Crim. App. 2007) (explaining

that “Issa did not stand for a general right to a separate punishment hearing, much less

one on a different day” (citing Hardeman v. State, 1 S.W.3d 689, 690-91 (Tex. Crim App.

1999))). However, the failure to make a timely and specific objection waives this statutory

right. See TEX. R. APP. P. 33.1(a)(1) (providing that a complaining party must make a

timely and specific objection to preserve error for appellate review); Neal v. State, 256

S.W.3d 264, 279 (Tex. Crim. App. 2008) (noting that an objection is timely if it is made as

soon as the ground for the objection becomes apparent); Viduarri v. State, 49 S.W.3d 880,

885-86 (Tex. Crim. App. 2001); Issa, 826 S.W.2d at 161. Because Mabe did not object to the

Mabe v. State Page 4 pronouncement of sentence when the trial court gave him the opportunity to do so after

the adjudication of his guilt, we conclude that Mabe waived his complaint in this issue.

Despite the foregoing, Mabe contends that he preserved error in this issue by filing

a motion for new trial. See Issa, 826 S.W.2d at 161. We disagree.

In Issa, at the close of the evidence and argument, the trial court revoked the

defendant’s probation, adjudicated his guilt, immediately assessed punishment, and then

quickly left the bench. Id. at 160. The defendant had no opportunity to ask to present

evidence concerning punishment. Id. The Court of Criminal Appeals held that because

the defendant’s requests to present punishment evidence were denied, and because he

was prevented from objecting at the time of sentencing, he was permitted to raise his

complaint for the first time in a motion for new trial. See id. at 161.

The facts in the present case are distinguishable from those in Issa. As mentioned

earlier, the trial court specifically asked defense counsel if there was any reason why the

sentences should not be pronounced after adjudicating Mabe’s guilt in both cases.

Defense counsel responded in the negative and informed the trial court that Mabe did

not have anything to say prior to the pronouncement of sentence. Therefore, unlike Issa,

the record reflects that Mabe had an opportunity to raise this complaint in the trial court

prior to sentencing but chose not to do so. See id. at 160; see also Pearson v. State, 994 S.W.2d

176, 179 (Tex. Crim. App. 1999) (explaining that “Issa was based on the trial court’s denial

of appellant’s requests to present evidence and then in one proclamation revoking

Mabe v. State Page 5 appellant’s probation, adjudicating his guilt, and sentencing him. Appellant had no

opportunity to object until after the trial court’s action was taken . . . . In such rare

circumstances, the error is preserved by raising it in a motion for new trial”).

Accordingly, we find Issa to be distinguishable from the facts in this case. And as such,

we cannot say that Mabe’s motion to new trial preserved his complaint in this issue. We

overrule Mabe’s first issue in both appellate cause numbers.

Cruel and Unusual Punishment

In his second issue in both appellate cause numbers, Appellant contends that the

sentence imposed was disproportionate to the crimes alleged and amounts to cruel and

unusual punishment in violation of the United States and Texas Constitutions. See U.S.

CONST. amend. VIII; see also TEX. CONST. art. I, § 13.

A disproportionate-sentence claim must be preserved for appellate review either

by objecting when the sentence is imposed or raising the claim in a timely-filed motion

for new trial. See TEX. R. APP. P. 33.1(a)(1); Rhoades v. State, 934 S.W.2d 113, 120 (Tex. Crim.

App. 1996) (noting that constitutional rights, including the right to be free from cruel and

unusual punishment, may be waived); Mercado v. State, 718 S.W.2d 291, 296 (Tex. Crim.

App. 1986) (en banc); see also Means v. State, 347 S.W.3d 873, 874 (Tex. App.—Fort Worth

2011, no pet.); Noland v. State, 264 S.W.3d 144, 151 (Tex. App.—Houston [1st Dist.] 2007,

pet. ref'd) ("[I]n order to preserve for appellate review a complaint that a sentence is

grossly disproportionate, constituting cruel and unusual punishment, a defendant must

Mabe v. State Page 6 present to the trial court a timely request, objection, or motion stating the specific grounds

for the ruling desired.").

However, if such a claim is raised in a motion for new trial, the defendant must

also present the motion for new trial to preserve the issue for appellate review. See

Bearnth v. State, 361 S.W.3d 135, 145 (Tex. App.—Houston [1st Dist.] 2011, pet. ref'd); see

also Means, 347 S.W.3d at 874. “Presentment requires a defendant to do more than simply

file the motion for new trial with the trial court clerk. ‘The presentment must be directed

to the trial court or another authorized to act on behalf of the trial court.’” Bearnth, 361

S.W.3d at 145 (quoting Carranza v. State, 960 S.W.2d 76, 79 (Tex. Crim. App. 1998)). “This

requirement puts the trial court on actual notice that a defendant desires the trial court to

take some action on the motion for new trial such as a ruling or a hearing on it." Id.

(internal citations & quotations omitted). Proof of presentment must be apparent from

the record and can be evidenced by the trial judge's signature or notation on the proposed

order attached to the motion for new trial, an entry on the docket sheet indicating

presentment, or the setting of a hearing date. Id. at 146.

As discussed above, a review of the record shows that Mabe did not raise this

complaint at the time the sentence was imposed; instead, he raised this complaint in his

timely-filed motion for new trial. But there is no indication from this record that Mabe

presented his motion for new trial to the trial court. See id. at 145-46; see also Means, 347

S.W.3d at 874. In fact, the record does not contain a proposed order on Mabe’s motion

Mabe v. State Page 7 for new trial with the trial judge’s signature or notation. Furthermore, the docket sheet

does not indicate presentment, and there is no evidence of a hearing date on Mabe’s

motion for new trial. Consequently, we conclude that Mabe has waived this complaint.

See TEX. R. APP. P. 33.1(A)(1); see also Rhoades, 934 S.W.2d 113; Bearnth, 361 S.W.3d at 145-

46; Means, 347 S.W.3d at 874. We overrule Mabe’s second issue in both appellate cause

numbers.

Conclusion

We affirm the judgments of the trial court.

STEVE SMITH Justice

Before Chief Justice Gray, Justice Johnson, and Justice Smith Affirmed Opinion delivered and filed July 27, 2022 Do not publish [CRPM]

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