Dondre Carter v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: July 18, 2024
• Docket: 13-24-00147-CR
• Status: Published

Opinion

NUMBER 13-24-00147-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI – EDINBURG

DONDRE CARTER, Appellant,

v.

THE STATE OF TEXAS, Appellee.

ON APPEAL FROM THE 24TH DISTRICT COURT OF DEWITT COUNTY, TEXAS

MEMORANDUM OPINION

Before Chief Justice Contreras and Justices Tijerina and Peña Memorandum Opinion by Justice Peña

Appellant Dondre Carter appeals the trial court’s order revoking his community

supervision; adjudicating him guilty of aggravated assault by threat with a deadly weapon,

a second-degree felony; finding an enhancement paragraph true, thereby elevating the

sentence to that of a first-degree felony; and sentencing him to forty years’ imprisonment. See TEX. PENAL CODE ANN. §§ 22.02(a)(2), 12.32(a), 12.42(b). By one issue, Carter

contends that “[t]he sentence in this case amounts to cruel and unusual punishment when

compared to the severity of the underlying offense and technical probation violations.”

We affirm as modified.

I. BACKGROUND

In a one-count indictment, Carter was charged with aggravated assault by threat

with a deadly weapon. See id. § 22.02(a)(2). An enhancement paragraph further alleged

that Carter had been previously finally convicted of the felony offenses of aggravated

assault on a family member with a deadly weapon and abandoning or endangering a

child. See id. §§ 22.02(b)(1), 22.041. As part of a plea agreement, Carter pleaded guilty

as charged in the indictment and was placed on deferred-adjudication community

supervision for a period of seven years. See TEX. CODE CRIM. PROC. ANN. art. 42A.101.

Less than four months later, the State filed a motion to revoke Carter’s community

supervision and adjudicate him guilty. The revocation motion alleged that Carter violated

his community-supervision conditions by: (1) committing the offense of aggravated

robbery; (2) failing to abide by his court-ordered curfew; (3) failing to satisfactorily

complete his community service restitution hours as directed; (4) failing to pay court-

ordered monthly supervisory fees; and (5) failing to pay court-ordered monthly court

costs.

At a contested revocation hearing, evidence was adduced that on November 3,

2022, Carter had been at a motel in Cuero, Texas with an acquaintance, Stephanie Rios,

when two armed men in ski masks entered Rios’s room, forced her to lay face down on

the bed, and made her give them her key to a safe located in the room. The men left after

2 finding nothing in the safe and rummaging through the room. Rios stated that after the

robbery she went to a gas station where she saw Carter with Maison Rickman and

Deshawn Winters, whom she believed to be the ones who had robbed her based on their

clothing. She further stated that she believed that Carter was involved in the robbery

because the masked men were making hand gestures toward him during the robbery,

which she interpreted as them asking Carter where in the room to search. After calling

dispatch to report the robbery, Bobby Banda of the Cuero Police Department conducted

a felony traffic stop, which led to the arrests of Carter and Winters. Rickman was

separately arrested. Based on surveillance footage, law enforcement identified Rickman

and Winters as the individuals who had entered Rios’s motel room.

In a post-arrest video interview admitted into evidence, Carter admitted to being

with Rickman and Winters prior to the robbery, and that they had dropped Carter off at

Rios’s motel room. Carter confirmed Rios’s account of the robbery, including the fact that

both men were holding guns. According to Carter, he was the “middleman” for a drug deal

in which Rios was to sell methamphetamine to Rickman and Winters. After Rios called

off the drug deal, Carter was dropped off at her motel room. In his interview, Carter opined

that Rickman and Winters committed the robbery because they were upset that Rios had

called off the deal. Carter denied any involvement in the robbery. The State also admitted

into evidence the underlying indictments and judgments in Carter’s two prior felony cases.

The trial court found all the allegations in the motion to adjudicate to be true and

found that the State had proven the commission of aggravated robbery by a

preponderance of the evidence. The trial court further found the enhancement paragraph

to be true. After noting that “every crime that [Carter] has committed has been against a

3 person, and [he is] putting people in fear and danger, harming, threatening, and it seems

to be escalating,” the trial court sentenced him to forty years’ imprisonment. Defense

counsel objected that the sentence was unnecessary and violated the Eighth

Amendment. The trial court overruled the objection. This appeal followed.

II. STANDARD OF REVIEW & APPLICABLE LAW

The Eighth Amendment—made applicable to the states through the Fourteenth

Amendment—prohibits the imposition of cruel and unusual punishments, which includes

extreme sentences that are grossly disproportionate to the crime. Graham v. Florida, 560

U.S. 48, 58–60 (2010); see U.S. CONST. amend. VIII (“Excessive bail shall not be

required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”); id.

amend. XIV. A trial court’s discretion to assess punishment within the statutory range is

essentially unfettered. Ex parte Chavez, 213 S.W.3d 320, 323 (Tex. Crim. App. 2006)

(describing the “task of setting a particular length of confinement within the prescribed

range of punishment [as] essentially a ‘normative’ judgment”). Generally, “punishment

assessed within the statutory limits, including punishment enhanced pursuant to a

habitual-offender statute, is not excessive, cruel, or unusual.” State v. Simpson, 488

S.W.3d 318, 323 (Tex. Crim. App. 2016); see Trevino v. State, 174 S.W.3d 925, 928 (Tex.

App.—Corpus Christi–Edinburg 2005, pet. ref’d) (same).

“A narrow exception to the general rule exists: ‘an individual’s sentence may

constitute cruel and unusual punishment, despite falling within the statutory range, if it is

grossly disproportionate to the offense.’” Trevino v. State, 676 S.W.3d 726, 729 (Tex.

App.—Corpus Christi–Edinburg 2023, no pet.) (quoting Alvarez v. State, 525 S.W.3d 890,

892 (Tex. App.—Eastland 2017, pet. ref’d)). “An allegation of excessive or

4 disproportionate punishment is a legal claim ‘embodied in the Constitution’s ban on cruel

and unusual punishment’ and based on a ‘narrow principle that does not require strict

proportionality between the crime and the sentence.’” Id. (quoting Simpson, 488 S.W.3d

at 322–24). A successful challenge to proportionality is exceedingly rare and requires a

finding of “gross disproportionality.” Simpson, 488 S.W.3d at 322–23 (citing Lockyer v.

Andrade, 538 U.S. 63, 73 (2003)). In the revocation context, we must evaluate the

proportionality of the sentence to the original offense, not to the violations of the terms of

community supervision. See Sullivan v. State, 975 S.W.2d 755, 756 (Tex. App.—Corpus

Christi–Edinburg 1998, no pet.); Hammer v. State, 461 S.W.3d 301, 304 (Tex. App.—Fort

Worth 2015, no pet.) (“In resolving an Eighth Amendment disproportionality complaint,

we first compare the gravity of the offense to the severity of the sentence. We evaluate

the original offense, not community supervision violations, in making this comparison.”).

Where a sentence is imposed under a recidivist statute, the “sentence is imposed to

reflect the seriousness of [a defendant’s] most recent offense, not as it stands alone, but

in light of prior offenses.” Winchester v. State, 246 S.W.3d 386, 390 (Tex. App.—Amarillo

2008, pet. ref’d) (citing Rummel v. Estelle, 445 U.S. 263, 276 (1980) (holding that a life

sentence under Texas’s recidivist statue was not cruel and unusual)).

“In the rare case in which this threshold comparison leads to an inference of gross

disproportionality, the court should then compare the defendant’s sentence with the

sentences received by other offenders in the same jurisdiction and with the sentences

imposed for the same crime in other jurisdictions.” Simpson, 488 S.W.3d at 323. “If this

comparative analysis validates an initial judgment that the sentence is grossly

disproportionate, the sentence is cruel and unusual.” Id. “Only twice has the Supreme

5 Court held that a non-capital sentence imposed on an adult was constitutionally

disproportionate.” Id. (first citing Solem v. Helm, 463 U.S. 277 (1983) (holding that life

imprisonment without parole was a grossly disproportionate sentence for the crime of

uttering a no-account check for $100); and then citing Weems v. United States, 217 U.S.

349 (1910) (holding that fifteen years in a prison camp was grossly disproportionate to

the crime of falsifying a public record)). When reviewing a disproportionate-sentencing

claim, we should generally try to “give full effect to the State’s choice of . . . legitimate

penological goal[s]” and “accord proper deference to the policy judgments that find

expression in the legislature’s choice of sanctions.” Ewing v. California, 538 U.S. 11, 29

(2003).

III. DISCUSSION

Carter does not challenge the trial court’s determination that he violated the terms

of his community supervision by failing to abide by his court-ordered curfew; failing to

satisfactorily complete his community service restitution hours as directed; failing to pay

court-ordered monthly supervisory fees; and failing to pay court-ordered monthly court

costs. Rather, Carter argues that because the State failed to prove that he committed the

offense of aggravated robbery beyond a reasonable doubt, the resulting sentence was

disproportionate compared to the conceited technical violations. Carter argues, “[i]t

appears that the true impetus behind [Carter]’s 40 year sentence was this uncharged

alleged law violation.”1

Carter was adjudicated guilty of aggravated assault by threat with a deadly

1 Carter does not separately argue that the trial court was presented with legally insufficient

evidence to support revocation on the basis of the aggravated robbery. See Carreon v. State, 548 S.W.3d 71, 77 (Tex. App.—Corpus Christi–Edinburg 2018, no pet.). 6 weapon, a second-degree felony which, due to the enhancement finding, was punishable

as a first-degree felony—i.e., by imprisonment for life or for any term not more than 99

years or less than 5 years. See TEX. PENAL CODE ANN. §§ 22.02(a)(2), 12.32(a), 12.42(b).

Carter’s forty-year sentence was well within statutory limits and is presumptively not

excessive, cruel, or unusual. See Simpson, 488 S.W.3d at 323; Trevino, 174 S.W.3d at

928.

Carter’s claim consequently survives only if his sentence was “grossly

disproportionate” to the crime. See Trevino, 676 S.W.3d at 729; Simpson, 488 S.W.3d at

323. “To determine whether a sentence for a term of years is grossly disproportionate for

a particular defendant’s crime, [we] must judge the severity of the sentence in light of the

harm caused or threatened to the victim, the culpability of the offender, and the offender’s

prior adjudicated and unadjudicated offenses.” Simpson, 488 S.W.3d at 323 (citing

Graham, 560 U.S. at 60). Contrary to Carter’s suggestion, we must evaluate his

disproportionate-sentencing claim by comparing his sentence with the underlying offense

for which he was adjudicated guilty, not the violations that the trial court found to be true,

and which served as the basis of his revocation and adjudication of guilt. See Sullivan,

975 S.W.2d at 756; Hammer, 461 S.W.3d at 304.

Carter was adjudicated guilty of aggravated assault by threat with a deadly

weapon. See TEX. PENAL CODE ANN. § 22.02(a)(2). According to the indictment, Carter

“intentionally and knowingly threaten[ed] [an individual] with imminent bodily injury by

pointing a firearm at [the individual], and [Carter] did then and there use or exhibit a deadly

weapon, to-wit: said firearm, during the commission of the assault.” A “deadly weapon”

includes “a firearm or anything manifestly designed, made, or adapted for the purpose of

7 inflicting death or serious bodily injury.” Id. § 1.07(a)(17). Standing alone, this offense is

a second-degree felony, see id. § 22.02(b), and is punishable “for any term not more than

20 years or less than 2 years.” Id. § 12.33. As part of this guilty plea, Carter signed a

judicial confession in which he admitted the truth of this allegation.

Carter’s sentence was enhanced to a first-degree felony because he had been

previously finally convicted of aggravated assault on a family member with a deadly

weapon and abandoning or endangering a child. See id. §§ 22.02(b)(1), 22.041, 12.42(b);

Winchester, 246 S.W.3d at 390 (noting that under a recidivist statute we must analyze a

disproportionate-sentencing claim by comparing the sentence with the “most recent

offense, not as it stands alone, but in light of prior offenses”). One underlying indictment

alleged that Carter “intentionally and knowingly use[d] a deadly weapon, to-wit: a firearm,

and did then and there intentionally and knowingly threaten [B.R.] with imminent bodily

injury by the use of said weapon,” and “said [B.R.] was a member of the said . . . Carter’s

family and household.” See id. § 22.02(b)(1). The second underlying indictment alleged

that Carter “intentionally, and knowingly engage[d] in conduct by an act that placed [M.V.],

a child younger than 15 years, in imminent danger of death, bodily injury and physical

and mental impairment, to-wit: the said [Carter] pointed a firearm in the direction of said

[M.V.] while threatening [B.R.] with said firearm.” See id. § 22.041(b). The trial court found

by a preponderance of the evidence that Carter committed the aggravated robbery of

Rios, and by his own admission, Carter was actively involved in facilitating drug

transactions involving methamphetamine. See Cobb v. State, 851 S.W.2d 871, 874 (Tex.

Crim. App. 1993) (“The burden of proof at a probation revocation hearing is by a

preponderance of the evidence.”). Before imposing its sentence, the trial court noted that

8 “every crime that [Carter] has committed has been against a person, and [he is] putting

people in fear and danger, harming, threatening, and it seems to be escalating.”

Upon this record, we cannot say that Carter’s forty-year sentence gives rise to an

inference of gross disproportionality. See Simpson, 488 S.W.3d at 323; Reyes v. State,

557 S.W.3d 624, 635 (Tex. App.—El Paso 2017, pet. ref’d) (concluding that a forty-year

sentence for first-degree felony aggravated assault on a family member with a deadly

weapon by a repeat felony offender was not grossly disproportionate); see also Guillory

v. State, 652 S.W.3d 923, 930–31 (Tex. App.—Eastland 2022, pet. ref’d) (mem. op., not

designated for publication) (concluding that the maximum twenty-year sentence for

second-degree felony aggravated assault imposed after revocation of appellant’s

community supervision and adjudication of guilt was not grossly disproportionate);

Camacho v. State, No. 02-23-00184-CR, 2024 WL 123493, at *3 (Tex. App.—Fort Worth

Jan. 11, 2024, no pet.) (mem. op., not designated for publication) (concluding that the

maximum twenty-year sentence for second-degree felony aggravated assault with a

deadly weapon imposed after revocation of appellant’s community supervision and

adjudication of guilt was not grossly disproportionate).

Even if we were to assume a threshold inference of disproportionality, Carter

presented no evidence in the trial court, and presents no argument on appeal,

“compar[ing] [his] sentence with the sentences received by other offenders in the same

jurisdiction and with the sentences imposed for the same crime in other jurisdictions.”

Simpson, 488 S.W.3d at 323. Absent this comparative analysis, we are unable to

conclude that the sentences are grossly disproportionate. See id.; see also Esquivel v.

State, No. 13-21-00179-CR, 2022 WL 17492274, at *2 (Tex. App.—Corpus Christi–

9 Edinburg Dec. 8, 2022, pet. ref’d) (mem. op., not designated for publication) (rejecting

Eighth Amendment challenge where appellant offered no comparative evidence of

sentences received by other offenders); Isassi v. State, No. 13-22-00384-CR, 2023 WL

3881127, at *2 (Tex. App.—Corpus Christi–Edinburg June 8, 2023, pet. ref’d) (mem. op.,

not designated for publication) (same).

We overrule Carter’s sole issue.

IV. REFORMATION OF JUDGMENT

An intermediate appellate court may reform a trial court’s judgment to make the

record speak the truth when it has the necessary data and information to do so. See TEX.

R. APP. P. 43.2(b) (authorizing appellate courts to modify the judgment and affirm as

modified); French v. State, 830 S.W.2d 607, 609 (Tex. Crim. App. 1992) (“[A]n appellate

court has authority to reform a judgment to include an affirmative finding to make the

record speak the truth.”). The judgment of conviction, under the section “Statute for

Offense,” erroneously states that Carter was convicted under sections “22.02 & 12.45

Penal Code.” See TEX. PENAL CODE ANN. § 12.45 (permitting a defendant to admit guilt to

one or more unadjudicated offenses with the consent of the attorney for the State for the

trial court to consider when determining sentence). We modify the trial court’s judgment

to instead list the following under “Statute for Offense:” “22.02 & 12.42 Penal Code.” See

id. § 12.42 (permitting enhanced punishment for repeat felony offenders).

10 V. CONCLUSION

We affirm the trial court’s judgment as modified. See TEX. R. APP. P. 43.2(b).

L. ARON PEÑA JR. Justice

Do not publish. TEX. R. APP. P. 47.2(b).

Delivered and filed on the 18th day of July, 2024.