Jose Antonio Rodriguez v. State

• Court: Court of Appeals of Texas
• Decided: January 31, 2002
• Docket: 06-01-00186-CR
• Status: Published

Opinion

In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

______________________________

No. 06-01-00186-CR ______________________________

JOSE ANTONIO RODRIGUEZ, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the 124th Judicial District Court Gregg County, Texas Trial Court No. 27007-B

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Before Cornelius, C.J., Grant and Ross, JJ. Opinion by Chief Justice Cornelius

O P I N I O N

Jose Antonio Rodriguez appeals a trial court judgment adjudicating him guilty of deadly conduct, Tex. Pen. Code Ann. § 22.05 (Vernon 1994), and setting his punishment at ten years' imprisonment. Rodriguez was originally indicted for aggravated assault and deadly conduct by the discharge of a firearm. Pursuant to a plea bargaining agreement in which the State dismissed the aggravated assault charge, Rodriguez entered a plea of guilty to the deadly conduct charge. The trial court deferred adjudication and placed Rodriguez on community supervision for a term of five years. On February 3, 2000, the State filed an application alleging that Rodriguez violated conditions of his community supervision. The trial court imposed an additional condition of community supervision. Later, on May 22, 2001, the State filed an amended application for adjudication of guilt, alleging that Rodriguez violated the terms of his community supervision by violating the laws in the following respects: 1) on May 19, 2001, intentionally and knowingly causing the penetration of the female sexual organ of A. Rodriguez by his sexual organ without her consent; 2) on May 19, 2001, intentionally causing bodily injury to A. Rodriguez by striking her with his hand; and 3) on February (sic) 19, 2001, intentionally causing bodily injury to A. Rodriguez by striking her with his hand. The "A. Rodriguez" referred to therein is Alta Marie Rodriguez, who is married to Jose Antonio Rodriguez.

After a hearing at which Floyd McElroy, Jose Rodriguez' community supervision officer, and Alta Rodriguez testified, the trial court found the allegations in the State's motion true and formally adjudicated Rodriguez guilty of the offense of deadly conduct as charged in the original indictment. The trial court sentenced Rodriguez to ten years' imprisonment.

On appeal, Rodriguez' sole point of error is that the ten-year sentence imposed by the trial court is disproportionate to the offense. Rodriguez has failed to preserve this issue. He made no objection to the sentence imposed on the ground that it was disproportionate to the crime, or on any other ground, at the time it was imposed. In Jackson v. State, 989 S.W.2d 842, 845 (Tex. App.-Texarkana 1999, no pet.), we held that a defendant is required to raise in the trial court at the time the sentence is imposed any objection he might have on the ground of disproportionality. Id.

Even if properly preserved, the Rodriguez claim is not valid. As a general rule, Texas courts hold that so long as the punishment imposed is within the limits prescribed by a valid statute, the punishment is not excessive, cruel, or unusual. McNew v. State, 608 S.W.2d 166, 174 (Tex. Crim. App. 1978); Latham v. State, 20 S.W.3d 63, 68 (Tex. App.-Texarkana 2000, pet. ref'd); Jackson v. State, 989 S.W.2d at 846.

The offense of deadly conduct by the discharge of a firearm is, under Tex. Pen. Code Ann. § 22.05(b), a third-degree felony punishable by a term of imprisonment of not more than ten or less than two years. Tex. Pen. Code Ann. § 12.34(a) (Vernon 1994). As Rodriguez' sentence falls within this range, he cannot claim that his sentence is excessive or constitutes cruel or unusual punishment.

Rodriguez correctly points out that we have held that a prohibition against disproportionate punishment is recognized under the Eighth Amendment to the United States Constitution apart from the issue of whether the punishment falls within the limits imposed by the Legislature. Latham v. State, 20 S.W.3d at 68-69; Jackson v. State, 989 S.W.2d at 845.

Rodriguez stipulated the evidence as to the original offense. The reports filed as stipulated evidence show that Rodriguez fired a gun at another person in connection with gang-related activity. Rodriguez stated at his original plea hearing that he was pleading guilty because he was guilty. At the revocation hearing, Alta Rodriguez testified that he struck her and forced her, over her objections, to have sexual relations with him. There was no testimony of the contents of the presentence (PSI) investigation report, which was not introduced into evidence.

Based on the facts of the underlying offense and the nature of the violations of the conditions of community supervision, we find that the sentence is not disproportionate to the crime. We are not required, therefore, to compare the punishment imposed in this case with punishments imposed for this and similar crimes in this and other jurisdictions. Further, Rodriguez produced no evidence of sentences for similar crimes in this or other jurisdictions, either before the trial court or in his brief to this Court. Latham v. State, 20 S.W.3d at 69.

Although not designated as a separate issue on appeal, Rodriguez contends in his brief that the appeal should be abated until the PSI report is made a part of the record in this case.

The record indicates that a PSI report was ordered after Rodriguez' original plea hearing and that counsel properly designated the PSI report as part of the record on appeal. At the revocation hearing, neither side referred to this report when arguing on an appropriate punishment at the punishment stage of the trial. The PSI report is not part of the mandatory record that the trial court clerk is required to provide in every criminal appeal. Tex. R. App. P. 34.5(a)(2). The appellate rules also state that in the case of both the clerk's record and the reporter's record, if something relevant is omitted, the trial court, the appellate court, or any party may direct the clerk of court or the court reporter, as the case may be, to prepare, certify, and file in the appellate court a supplement containing the omitted portion. Tex. R. App. P. 34.5(c)(1), 34.6(d). There is no question of our authority in this case to order the record supplemented with the PSI report. Ruffin v. State, 3 S.W.3d 140, 145 (Tex. App.-Houston [14th Dist.] 1999, pet. ref'd).

However, we decline to abate the appeal and order the record supplemented. Rodriguez has failed to demonstrate how he was harmed by the absence of the report from the record. Clearly he could have requested that the record be supplemented, filed a motion with this Court requesting supplementation, or made a separate issue on appeal contending that the record was not complete. In Ruffin v. State, the appellant contended that the trial court erred in failing to order a PSI report, to which the State responded that there was such a report, but that it was not in the appellate record because neither party introduced it into evidence. Further, appellant contended that the PSI report was defective because it did not contain the required alcohol and drug evaluations. It is clear that in Ruffin v. State an actual copy of the report would be necessary for the Houston Court of Appeals to rule on these questions. Upon the production of the report in the record, the first issue was resolved, and upon a reading of that report, the second issue was resolved. Ruffin v. State, 3 S.W.3d at 145.

In this case, Rodriguez fails to demonstrate prejudice or harm from the absence of the report in the record. For example, he does not argue that a specific item or items shown in that report and not considered by the trial court would require that his maximum sentence be mitigated. ⁽¹⁾

We find no reversible error. The judgment of the trial court is affirmed.

William J. Cornelius

Chief Justice

Date Submitted: January 8, 2002

Date Decided: January 31, 2002

Publish

1. This is certainly not to condone or excuse the failure of the clerk or reporter to include documents, specifically requested by one of the parties, in the record on appeal.

tify; line-height: 0.416667in">            In reviewing bond settings on appeal, we are guided by Article 17.15 of the Texas Code of Criminal Procedure, and we are to reverse a lower court's determination only if we find an abuse of discretion. Tex. Code Crim. Proc. Ann. art. 17.15 (Vernon Supp. 2004). That is, we will reverse the trial court's decision only if it was made without reference to any guiding principles or was, in other words, arbitrary or unreasonable. Montgomery v. State, 810 S.W.2d 372, 380 (Tex. Crim. App. 1990) (op. on reh'g). Even if we would have reached a different result, we should not intervene if the trial court's ruling is within the zone of reasonable disagreement. Id. at 391. Under Texas law, the amount of bail required in any case is within the discretion of the court, judge, magistrate, or officer taking the bail, subject to the following rules:

1.         The bail shall be sufficiently high to give reasonable assurance that the undertaking will be complied with.

2.         The power to require bail is not to be so used as to make it an instrument of oppression.

3.         The nature of the offense and the circumstances under which it was committed are to be considered.

4.         The ability to make bail is to be regarded, and proof may be taken upon this point.

5.         The future safety of a victim of the alleged offense and the community shall be considered.

Tex. Code Crim. Proc. Ann. art. 17.15. In addition, the Texas Court of Criminal Appeals has directed courts to consider the accused's work record, family and community ties, length of residency, prior criminal record (if any), and any aggravating circumstances alleged to have been involved in the offense the accused is charged with committing. Ex parte Rubac, 611 S.W.2d 848, 849–50 (Tex. Crim. App. 1981).

Evidence at Habeas Corpus Hearing

            At the habeas corpus hearing, the State introduced into evidence Officer Steve Shelley's warrant affidavits which asserted facts on which Shelley based his belief that Henson is guilty in the deaths of Rebecca Shifflett, Crystal Willis, and Matthew Hines, occurring while Henson and another were in the course of committing aggravated robbery. According to Shelley's affidavit, Hines' wife contacted police after Hines failed to return home on time and after she had found the restaurant doors locked and Hines' car parked outside. Reportedly, the police entered the restaurant, found all three victims in a back office, determined they had died as the result of gunshot wounds, and recovered six shell casings from the scene.

            Shelley's affidavit contains fact allegations—reportedly coming from Henson by way of his brother—consistent with those observed at the restaurant but which could have been known only by someone who had been at the restaurant at the time of, or after, the homicides. Henson's brother reportedly stated to Shelley that (1) Henson admitted to him on the day after the killings he and another man went to the restaurant to rob it, (2) while Henson and the other man were still at the restaurant, the other man entered the back office, shut the door, and apparently fired six shots from a silver handgun in his possession, (3) Henson saw blood on his companion's shoes and shirt when the companion emerged from the office, and (4) while leaving the scene, Henson accepted an envelope containing approximately $400.00 in cash.

            Without controverting the warrant affidavits, the defense called Henson's father as its sole witness, presenting evidence of Henson's lifelong Texarkana residence and of his employment in various jobs since attending high school. The evidence also indicated that, although Henson has a brother living overseas and a sister living elsewhere in Texas, the other members of Henson's immediate and extended family live in Texarkana. Henson's father testified that he could arrange to pay only $2,500.00 toward posting Henson's bond, that Henson himself has no assets except a car worth $500.00, and that no other family members are in a position to help post bond. On cross-examination, Henson's father admitted not having spoken with a bondsman about posting bond for Henson.

Representative Cases

            Contending the bond set in this case is excessive, Henson cites numerous appellate court decisions—none of which are more recent than 1991—in support of his contention that reasonable bail should not exceed $50,000.00. In fact, Henson argues, the Texas Court of Criminal Appeals "has yet to condone a bail amount even approaching seven figures, even in a capital case," citing Ludwig v. State, 812 S.W.2d 323, 325 (Tex. Crim. App. 1991). The State responds by citing more recent decisions in which courts of appeals have upheld bail amounts set as high as $1,000,000.00 in cases where defendants were charged with having committed the offense of capital murder. See, e.g., Ex parte Saldana, No. 13-01-00360-CR, 2002 Tex. App. LEXIS 536 (Tex. App.—Corpus Christi Jan. 24, 2002, no pet.) (not designated for publication), overruled in part on other grounds, Ramos v. State, 89 S.W.3d 122, 126 n.13 (Tex. App.—Corpus Christi 2002, no pet.); Ex parte Brown, No. 05-00-00655-CR, 2000 Tex. App. LEXIS 4656 (Tex. App.—Dallas July 13, 2000, no pet.) (not designated for publication). In still other cases cited by the State, courts of appeals have upheld bail settings ranging from $250,000.00 to $500,000.00. See, e.g., Ex parte Chachere, No. 03-01-00404-CR, 2002 Tex. App. LEXIS 453 (Tex. App.—Austin Jan. 25, 2002, no pet.) (not designated for publication); Ex parte Richardson, No. 05-99-01899-CR, 2000 Tex. App. LEXIS 715 (Tex. App.—Dallas Jan. 31, 2000, pet. ref'd) (not designated for publication).

            In Brown, the Fifth District Court of Appeals concluded Brown failed to show the $1,000,000.00 bond set by the lower court was excessive. Brown, 2000 Tex. App. LEXIS 4656, at *3–5. The only evidence available to that court, however, was the seriousness of the offense itself, the possible range of punishment, some of the details of aggravating circumstances, and uncontroverted testimony that Brown posed a threat to his estranged wife and to the community in general. Id. at *4–5. We also note Brown wielded a gun and admitted he personally committed the violent crime with which he was charged. Id. Unlike Henson, Brown failed to present any testimony relating to the factors laid out for consideration in either Article 17.15 or in Rubac, as discussed above. Therefore, the record contained no evidence regarding Brown's work record, community ties, length of residency in Texas, or his ability to make bail. Id.

            Although evidence in these categories was offered for the court's consideration in Ex parte Saldana, the Thirteenth District Court of Appeals still held there was no abuse of discretion in setting a $1,000,000.00 bond. Saldana, 2002 Tex. App. LEXIS 536, at *15. Saldana was a lifelong resident of Corpus Christi, who voluntarily surrendered himself on discovering that a warrant was outstanding for his arrest. For these reasons, and because he was regularly employed before his arrest and had family and community ties to the area, he contended it was an abuse of discretion for the court to deny his request for bond reduction. Id. at *14. Weighing these factors against the extremely violent nature of the offense, Saldana's family's ability to previously post a $500,000.00 bond, his membership in the violent Raza Unida gang, and other evidence suggesting he was a flight risk and a continuing threat to the community, the court ultimately determined that the bond set was not excessive. Id. at *15–16.

            Unlike the facts presented in Brown and Saldana, where there was no evidence presented regarding the excessiveness of the bond set or the evidence supporting a reduction was so far outweighed by the violent nature of the crime, the appellant's criminal history, and the ongoing threat to the community, the facts in Chachere and Richardson supported a reduced bond amount. Noting that a $700,000.00 bond was particularly high, even where the appellant was indicted for solicitation of capital murder, the Third District Court of Appeals reversed a lower court, ordering bond reduced to $250,000.00. Chachere, 2002 Tex. App. LEXIS 453, at *9–11. Evidence in that case showed (1) the relative stability of Chachere's employment, family, and community ties; (2) his compliance with court orders in other matters; and (3) no prior criminal record. Id. at *11. In Richardson, the Fifth District Court of Appeals upheld a $500,000.00 bond, giving special weight to the nature and circumstances of the offense committed, and stressing the significance of the appellant's confession to having deliberately planned and carried out the murder for which he was charged. Richardson, 2000 Tex. App. LEXIS 715, at *4–5.

            In this case, the trial court cited Ex parte Chavfull, 945 S.W.2d 183 (Tex. App.—San Antonio 1997, no pet.), as authority for setting a $750,000.00 bond for each of the three counts of capital murder. We attach significance to the fact that Chavfull not only personally killed during a robbery, but also had a prior conviction, was suspected in other crimes, and was known to have previously associated with dangerous people. Id. at 186–87. These key factors distinguish Chavfull from the allegations against Henson.

            In another Ex parte Brown, 959 S.W.2d 369 (Tex. App.—Fort Worth 1998, no pet.), we find an appellant more similarly situated to Henson in that this Brown was accused of participating in a robbery in which a victim was killed. Although Brown participated in the robbery, the evidence indicated he stood by as his confederate strangled and stomped the victim to death. Id. at 370. There was no evidence Brown had been convicted of a crime or accused of participating in other crimes or of previously fraternizing with dangerous people; nevertheless, considering his relative mobility,

the violence of the crime, and the potential threat to the community, the Second District Court of Appeals upheld a $500,000.00 bond. Id. at 372–73.

Analysis

            Ultimately, the appropriate amount of bail must be determined on a case-by-case basis. Certain similarities between the case at bar and those already discussed allow for comparison, yet none of the decisions previously cited directly address the appropriate amount of bail under the circumstances before us. We conclude the bond set in this case is not supported by relevant caselaw.

            Henson presented at least some evidence regarding Article 17.15 and Rubac factors. There is no evidence Henson has previously been able to post a significant bond or has ever had occasion to do so. The record contains no evidence Henson has ever been convicted, charged, or linked with criminal activity, was part of a gang, exhibited prior violent behavior, or previously associated with violent people. The evidence also fails to suggest Henson personally wielded the murder weapon; instead, he was reportedly outside the office door when the fatal shots were fired. Testimony at the habeas corpus hearing also indicates that Henson's family and community ties to the area are fairly strong, that he is a lifelong Texarkana resident, and that his family resources are limited. We also see evidence of family stability in Henson's brother coming forward with the report that led the authorities to charge Henson.

            On the other hand, we are mindful of the gravity of the crime committed in that, unlike the situations presented in Chachere and Richardson, where the offenses committed included solicitation of capital murder or capital murder of a single individual, this case alleges the intentional killing of three individuals, apparently for financial gain. While Henson may not have been the shooter, there is no indication that his companion's reportedly having the weapon at the scene was a surprise to him. In fact, the evidence suggests that, after hearing the shots and seeing his companion emerge from the back office with blood on his shirt and shoes, Henson nevertheless left the scene with him and received from him a share of the money taken from the restaurant. Even the evidence touching on factors other courts have used to reduce or support lower bond amounts is somewhat unsatisfactory. The only witness offering such testimony at the habeas corpus hearing was Henson's father, who offered testimony quite similar to parental testimony previously referred to by the Fourth District Court of Appeals as "inconclusive." Chavfull, 945 S.W.2d at 186.

            In the absence of evidence that Henson personally committed the violence in this case, previously committed or has been previously charged with other crimes, was guilty of prior violent behavior or prior association with violent people, or intended or anticipated the killings in this case, we conclude the setting of a $750,000.00 bond per count is without precedent, and the amount should be reduced. Considering the nature of the offense and the circumstances under which it was committed, however, caselaw clearly supports setting bond at a level sufficiently high to guard the future safety of the community. The uncontroverted warrant affidavits set forth a violent, unprovoked killing of three innocent and unsuspecting individuals during the commission of an aggravated robbery. The evidence of Henson's Rubac factors is weak, and Henson faces the possibility, if convicted, of either life in prison or the death penalty. See Maldonado v. State, 999 S.W.2d 91, 95 (Tex. App.—Houston [14th Dist.] 1999, pet. ref'd) ("In considering the nature of the offense, it is proper to consider the possible punishment.") (quoting Ex parte Charlesworth, 600 S.W.2d 316, 317 (Tex. Crim. App. 1980)).

            Under the circumstances, we hold the amount of the bond set by the trial court is unsupported by legal precedent. We order that the bond be reduced to $500,000.00 for each of the three counts of capital murder, for a total bond of $1,500,000.00.

                                                                                    BY THE COURT

Date Submitted:          February 19, 2004

Date Decided:             March 17, 2004