Linitra English v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: November 27, 2024
• Docket: 02-24-00192-CR
• Status: Published

Opinion

In the Court of Appeals Second Appellate District of Texas at Fort Worth ___________________________

No. 02-24-00192-CR ___________________________

LINITRA ENGLISH, Appellant

V.

THE STATE OF TEXAS

On Appeal from County Criminal Court No. 5 Denton County, Texas Trial Court No. F23-589-462

Before Sudderth, C.J.; Kerr and Birdwell, JJ. Memorandum Opinion by Justice Kerr MEMORANDUM OPINION

Appellant Linitra English appeals from her conviction for driving while

intoxicated third or more and attempts to challenge the factual sufficiency of her four-

year sentence. Because she cannot raise this issue, and has not otherwise preserved

error regarding the length of her sentence, we affirm.

The Sentencing Hearing

English pleaded guilty to driving while intoxicated third or more, a third-

degree-felony offense, in exchange for the State’s waiving an enhancement that, if

found true, would have increased the punishment range to a second-degree felony.

During English’s punishment hearing, the trial court considered a 911 call; heard from

witnesses, including the investigating and arresting officers; watched available video

footage of English’s standard field sobriety testing; and examined English’s warrant

blood-draw result (which was three times over the legal limit).

The trial court also reviewed evidence of English’s criminal history—including

two prior DWI convictions and multiple assaults—as well as other arrests. English

and her pastor presented evidence about English’s life, education, substance-abuse

struggles, criminal conduct, and goals.

Ultimately, the trial court sentenced English to four years’ confinement—which

falls within the prescribed sentencing range of two–ten years and, in fact, falls below

the midpoint of that range. See Tex. Penal Code Ann. §§ 12.34(a), 49.09(b)(2). English

2 neither objected to her sentence when imposed nor complained about it through a

motion for new trial.

Analysis

In her sole issue, English urges us to conduct a factual-sufficiency review of her

sentence, citing two past-their-shelf-life cases that used the factual-sufficiency

standard of review formerly applicable to convictions: Watson v. State, 204 S.W.3d 404,

405 (Tex. Crim. App. 2006) and Clewis v. State, 922 S.W.2d 126, 128 (Tex. Crim. App.

1996). In Brooks v. State, the Court of Criminal Appeals eliminated factual-sufficiency

reviews of the elements the State must prove beyond a reasonable doubt, overruling

Clewis and its factual-sufficiency-review progeny. 323 S.W.3d 893, 912 (Tex. Crim.

App. 2010); see Walker v. State, No. 02-16-00418-CR, 2018 WL 1096060, at

*2 n.5 (Tex. App.—Fort Worth Mar. 1, 2018, no pet.) (mem. op., not designated for

publication).

Although English’s brief cites Brooks, she does not discuss why it would

nevertheless still apply to punishment challenges. It does not. See Walker,

2018 WL 1096060, at *2 n.5; see also Ex parte Chavez, 213 S.W.3d 320, 323–24 (Tex.

Crim. App. 2006) (“Subject only to a very limited, ‘exceedingly rare,’ and somewhat

amorphous Eighth Amendment gross-disproportionality review, a punishment that

falls within the legislatively prescribed range, and that is based upon the sentencer’s

informed normative judgment, is unassailable on appeal.” (footnotes omitted)).

3 As we have repeatedly held, “the factual[-]sufficiency standard of review does

not apply to complaints about the length of a sentence . . . .” Maloy v. State, No. 02-23-

00302-CR, 2024 WL 4631290, at *3 (Tex. App.—Fort Worth Oct. 31, 2024, no pet.

h.) (mem. op., not designated for publication) (quoting Arnold v. State, No. 02-23-

00128-CR, 2023 WL 8940397, at *6 & n.21 (Tex. App.—Fort Worth Dec. 28, 2023,

no pet.) (mem. op., not designated for publication) (citing Burt v. State, 396 S.W.3d

574, 577 (Tex. Crim. App. 2013))); see Kim v. State, 283 S.W.3d 473, 475 (Tex. App.—

Fort Worth 2009, pet. ref’d). Accordingly, we hold that English may not raise a

factual-sufficiency complaint to her sentence, and we overrule her sole issue.1

Conclusion

Having overruled English’s sole issue, we affirm the trial court’s judgment.

1 English couches her argument as a factual-sufficiency complaint. But even were we to interpret English’s argument as claiming that she received a grossly disproportionate sentence, we would find that English failed to preserve error on such an issue because she did not object to her sentence during the punishment hearing, when her sentence was pronounced, or through a motion for new trial. See Tex. R. App. P. 33.1; Burt, 396 S.W.3d at 577 (“A sentencing issue may be preserved by objecting at the punishment hearing, or when the sentence is pronounced.”); Richardson v. State, 328 S.W.3d 61, 72 (Tex. App.––Fort Worth 2010, pet. ref’d) (holding appellant failed to preserve complaint about alleged disproportionate sentencing); Arnold, 2023 WL 8940397, at *6 (holding appellant waived complaint about his sentence’s length).

4 /s/ Elizabeth Kerr Elizabeth Kerr Justice

Do Not Publish Tex. R. App. P. 47.2(b)

Delivered: November 27, 2024