Will Lee Washington v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: May 22, 2024
• Docket: 05-23-00734-CR
• Status: Published

Opinion

AFFIRM AS MODIFIED; and Opinion Filed May 22, 2024

S In The Court of Appeals Fifth District of Texas at Dallas No. 05-23-00732-CR No. 05-23-00733-CR No. 05-23-00734-CR

WILL LEE WASHINGTON, Appellant V. THE STATE OF TEXAS, Appellee

On Appeal from the 283rd Judicial District Court Dallas County, Texas Trial Court Cause Nos. F-22-41991, F-22-41992, and F-22-41993

MEMORANDUM OPINION Before Justices Goldstein, Smith, and Garcia Opinion by Justice Smith Will Lee Washington appeals the trial court’s judgments convicting him of

evading arrest with a vehicle,1 unlawful possession of a firearm by a felon,2 and

possession of a controlled substance.3 In two issues, appellant contends that (1) he

received a sentence beyond that necessary to accomplish the goals of the United

States and Texas Constitutions and the Texas Penal Code and (2) duplicative court

1 Appellate cause number 05-23-00732-CR; trial court cause number F-22-41991. 2 Appellate cause number 05-23-00733-CR; trial court cause number F-22-41992. 3 Appellate cause number 05-23-00734-CR; trial court cause number F-22-41993. costs were improperly assessed in two of the cases. We affirm the trial court’s

judgment in trial court cause number F-22-41991. We modify the judgments in trial

court cause numbers F-22-41992 and F-22-41993 and affirm as modified.

Background

In December 2022, appellant was charged with evading arrest with a vehicle,

possession of a firearm by a felon, and possession of a controlled substance. The

indictment for evading arrest included an enhancement paragraph alleging a prior

felony, and the indictment for possession of a controlled substance included two

enhancement paragraphs each alleging a prior state jail felony. Appellant entered an

open plea of guilt and judicially confessed to each offense, pleaded true to the

enhancement paragraphs, and proceeded to trial before the court on punishment.

Mesquite Police Officer Douglas Coyle testified that he attempted to initiate

a traffic stop of a driver, later identified as appellant, at approximately 7 a.m. on

October 25, 2022. Officer Coyle observed appellant first fail to maintain a single

lane of traffic and then run a red light, almost causing a collision. Officer Coyle

activated the lights on his police car, and appellant accelerated and evaded arrest for

several minutes. In doing so, appellant passed through intersections and crosswalks

near schools where, at that time of day, it was common for students to be walking.

Appellant ran a second red light while driving approximately sixty to seventy miles

per hour. Officer Coyle lost track of appellant’s vehicle, but another officer located

–2– it and apprehended appellant. Officers searched appellant and found a stolen firearm

and methamphetamine on his person.

Less than three months earlier, appellant had been granted parole on four

felony offenses, one of which was evading arrest with a vehicle. Records showing

appellant’s prior offenses were admitted into evidence. From 2017 through 2020,

appellant had been convicted of at least eight felonies, including unauthorized use

of a vehicle, evading arrest, burglary of a habitation, possession of a controlled

substance, and theft, and a number of misdemeanors. He had served community

supervision, had his community supervision revoked, and served time in prison.

Appellant, who was twenty-four-years old at the time of trial, asked the trial

court to place him on community supervision with drug treatment. He testified that

he realized he was getting older and could not keep wasting time. He planned to get

a job and turn his life around. His parents also were getting older, and he did not

want to disappoint them. They had supported appellant and would do anything to

help him.

When asked to explain his actions, appellant testified that he did not have a

job, had too much time, and was bored. He agreed that his criminal history was

substantial. And, he acknowledged that he previously had opportunities to turn his

life around while on community supervision and parole. Instead, he committed new

offenses. He also had received drug treatment, but started hanging out with the

wrong people when he was released.

–3– Appellant was asked about a video he posted to his Facebook account during

the short period of time between his release on parole and his arrest for the offenses

he committed in these cases.4 The video showed appellant brandishing firearms,

including pointing one into traffic, and posing with pills and large bags of marijuana.

Appellant disagreed that being so careless with firearms constituted a danger to

himself or the community, testifying that it was “not like [he] killed anybody or

anything.” He was just showing off and not all the drugs were his.

Appellant’s mother testified and also asked that appellant be placed on

community supervision. She did not think he should be judged by the crimes for

which he already served time and the video was irrelevant because appellant told her

he was using props.

After hearing the evidence and arguments of counsel, the trial court accepted

appellant’s guilty pleas and sentenced him to ten years’ confinement for the evading

arrest offense and seven years’ confinement for both the possession of a firearm by

a felon offense and the possession of a controlled substance offense, with the

sentences to run concurrently. This appeal followed.

Punishment

In his first issue, appellant complains that he received a sentence beyond that

necessary to accomplish the goals of the United States and Texas Constitutions and

4 During this same period, appellant also was arrested, and released on bond, for credit card abuse. –4– the Texas Penal Code. Appellant identifies mitigating factors, including that he is

older now and has started taking life more seriously, he has a stable and supportive

family, and he took responsibility for the offenses, and asserts that his sentences

were not proportional to his offenses and failed to promote the goal of rehabilitation

set forth in the penal code.

Subject to two narrow exceptions for absolute rights or waivable-only rights

not at issue in these cases, the record must show that an appellant made a timely

request, objection, or motion to the trial court for error to be preserved on appeal.

See TEX. R. APP. P. 33.1(a)(1); Garza v. State, 435 S.W.3d 258, 260–61 (Tex. Crim.

App. 2014). Appellant, however, did not object that his sentence was grossly

disproportionate or failed to accomplish the goals set forth in the penal code either

when his sentences were announced or in a post-conviction motion. Accordingly,

appellant has not preserved his complaint for appellate review. See Sims v. State,

No. 05-18-00572-CR, 2019 WL 2266547, at *3 (Tex. App.—Dallas May 28, 2019,

no pet.) (mem. op., not designated for publication) (argument that sentence was

grossly disproportionate in violation of constitution waived by failure to object in

trial court); Albiar v. State, Nos. 05-22-00558-CR, 05-22-00559-CR, 2023 WL

5814273, at *2 (Tex. App.—Dallas Sept. 8, 2023, no pet.) (mem. op., not designated

for publication) (listing cases in which this Court has consistently rejected argument

that sentence contravened objectives of penal code when no such argument was

raised in trial court).

–5– Even had appellant properly preserved his complaint for our review, his

sentences are neither grossly disproportionate nor violate the objective of the Texas

Penal Code. Although the concept of proportionate punishment is embodied in the

Eighth Amendment, it “is a narrow principle that does not require strict

proportionality between the crime and the sentence.”5 State v. Simpson, 488 S.W.3d

318, 322 (Tex. Crim. App. 2016). “[I]t forbids only extreme sentences that are

‘grossly disproportionate’ to the crime.” Id. (citing Ewing v. California, 538 U.S.

11, 23 (2003) (plurality opinion)). A sentence is grossly disproportionate to the

crime only in the exceedingly rare or extreme case. Id. at 322–23 (citing Lockyer v.

Andrade, 538 U.S. 63, 73 (2003)). Further, a sentence within the statutory limits is

not excessive, cruel, or unusual under the Eighth Amendment or the Texas

Constitution. See id. at 323; Lambright v. State, 318 S.W.2d 653, 653 (Tex. Crim.

App. 1958).

To determine whether a sentence for a term of years is grossly

disproportionate to a defendant’s crime, we conduct a threshold comparison, judging

“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 v. Florida,

5 Because “there is no significant difference between the protections afforded” by the state and federal constitutions with respect to cruel and unusual punishment, see Forbit v. State, No. 05-19-00946-CR, 2021 WL 1884655, at *1 (Tex. App.—Dallas May 11, 2021, no pet.) (mem. op., not designated for publication), we address appellant’s challenges under the Eighth Amendment and Article I, Section 13 of the Texas Constitution together.

–6– 560 U.S. 48, 60 (2010)). In the rare case in which this threshold comparison leads

to an inference of gross disproportionality, we then compare the defendant’s

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

sentences imposed for the same crime in other jurisdictions. Id. (citing Graham, 560

U.S. at 60). If this comparison validates an initial judgment that the sentence is

grossly disproportionate, the sentence is cruel and unusual. Id.

Appellant pleaded guilty to three offenses: (1) evading arrest, a third-degree

felony when the crime involves a repeat offender and a vehicle was used to evade

arrest; (2) possession of a firearm by a felon, a third-degree felony when the offender

possesses the firearm prior to the fifth anniversary of being released from

confinement; and (3) possession of a controlled substance listed in penalty group 1

or 1-B that weighs less than a gram, a state jail felony. See TEX. PEN. CODE ANN.

§§ 38.04(b)(2)(A), 46.04(a)(1), (e); TEX. HEALTH & SAFETY CODE ANN. §

481.115(a), (b). A person who commits a third-degree felony is subject to a range

of imprisonment not more than ten years or less than two years and may be punished

with a fine not to exceed $10,000. TEX. PEN. CODE ANN. § 12.34(a), (b). A person

on trial for a third-degree felony who has been previously convicted of a felony other

than a state jail felony shall be punished for a second-degree felony during

sentencing if convicted. TEX. PEN. CODE ANN. § 12.42(a). A person convicted of a

second-degree felony is subject to a range of imprisonment not more than twenty

years or less than two years and may be punished with a fine not to exceed $10,000.

–7– TEX. PEN. CODE ANN. § 12.33(a), (b). A person on trial for a state jail felony who

has been previously convicted of two state felonies shall be punished for a third-

degree felony. TEX. PEN. CODE ANN. § 12.425(a). Appellant’s ten-year sentence for

evading arrest, enhanced by a prior felony conviction, falls well within the statutory

limits of two to twenty years for a second–degree felony. Similarly, his seven-year

sentences for possession of a firearm by a felon and state jail felony possession of a

controlled substance, enhanced by two prior state jail felonies, fall well within the

statutory limits of two to ten years for a third–degree felony. Appellant’s sentences,

therefore, are not unconstitutionally cruel and unusual. See Simpson, 488 S.W.3d at

323; Castaneda v. State, 135 S.W.3d 719, 723, 725 (Tex. App.—Dallas 2003, no

pet.).

The evidence clearly shows the gravity of appellant’s offenses. He sped near

multiple schools and through a high school crosswalk during a time of high foot

traffic, ran two red lights, and narrowly avoided a collision. He evaded arrest while

in possession of a stolen firearm and methamphetamine. Appellant failed to express

remorse. Further, he committed the offenses less than three months after being

granted parole for four other felony offenses. Considering the severity of appellant’s

sentences in light of the harm threatened, his culpability, and his prior adjudicated

and unadjudicated offenses, we conclude that his sentences do not constitute the rare

or extreme case that raises an inference of gross disproportionality. Accordingly,

–8– we need not compare appellant’s sentences to sentences imposed on others. See

Simpson, 488 S.W.3d at 323.

Appellant also contends that, based on his age, his sentences failed to promote

the goal of rehabilitation, one of the sentencing objectives set out in the Texas Penal

Code. Rehabilitation, however, is not the only objective of the penal code;

deterrence and punishment as necessary to prevent recurrence of criminal behavior

also are objectives. See TEX. PENAL CODE ANN. § 1.02(1); Render v. State, No. 05-

16-00542-CR, 2017 WL 1326055, at *2 (Tex. App.—Dallas Apr. 11, 2017, no pet.)

(mem. op., not designated for publication).

We review a trial court’s sentence for an abuse of discretion. Jackson v. State,

680 S.W.2d 809, 814 (Tex. Crim. App. 1984). Generally, a sentence assessed within

the statutory range of punishment applicable to the crime will not be disturbed on

appeal, id.; Foster v. State, 525 S.W.3d 898, 911 (Tex. App.—Dallas 2017, pet.

ref’d), and as noted previously, appellant’s sentences were within the applicable

statutory limits. Further, the evidence shows that appellant had not taken advantage

of opportunities for rehabilitation while on community supervision in the past. His

sentences satisfy the objectives of deterrence and punishment necessary to prevent

the likely recurrence of criminal behavior. See TEX. PENAL CODE ANN. § 1.02(1)(A),

(C). Considering the nature of appellant’s offenses and their circumstances, we

cannot conclude that the trial court abused its discretion by imposing the sentences

it did, even if those sentences may have furthered one objective of the penal code

–9– more than another. See Render, 2017 WL 1326055, at *2. We overrule appellant’s

first issue.

Modification of Judgments

In a second issue, appellant asserts that the trial court erred in assessing

duplicative court costs. The State agrees.

This Court has the power to modify a judgment to speak the truth when we

have the necessary information to do so. See TEX. R. APP. P. 43.2(b); Bigley v. State,

865 S.W.2d 26, 27–28 (Tex. Crim. App. 1993); Asberry v. State, 813 S.W.2d 526,

529–30 (Tex. App.—Dallas 1991, pet. ref’d). And, specifically, we may modify a

judgment to eliminate duplicative or improper costs. Wilson v. State, Nos. 05-22-

00452-CR, 05-22-00453-CR, 2023 WL 4758470, at *2 (Tex. App.—Dallas July 26,

2023, pet. ref’d) (mem. op., not designated for publication).

“In a single criminal action in which a defendant is convicted of two or more

offenses or of multiple counts of the same offense, the court may assess each court

cost or fee only once against the defendant.” TEX. CODE CRIM. PROC. ANN. art.

102.073(a). For purposes of this rule, a person convicted of two or more offenses in

the same trial or plea proceeding is convicted of those offenses in a “single criminal

action.” Shuler v. State, 650 S.W.3d 683, 690 (Tex. App.—Dallas 2022, no pet.).

Generally, court costs should be assessed in the case with the highest category

offense but, when the convictions are for the same category of offense and the costs

–10– are the same, the costs should be assessed in the case with the lowest trial court cause

number. Id.

Here, appellant was convicted of two third-degree felonies, evading arrest and

possession of a firearm by a felon, and one state jail felony, possession of a

controlled substance. See TEX. PEN. CODE ANN. §§ 38.04(b)(2)(A), 46.04(a)(1), (e);

TEX. HEALTH & SAFETY CODE ANN. § 481.115(a), (b). Because each of his

convictions arose from a single criminal action, court costs should have been

assessed in only one case. See TEX. CODE CRIM. PROC. ANN. art. 102.073(a). The

evading arrest and possession of a firearm by a felon offenses are both third-degree

felonies, so only court costs for the evading arrest offense, which has the lower trial

court cause number, should be enforced. See Garcia v. State, Nos. 05-21-01134-

CR, 05-21-01135-CR, 05-21-01136-CR, 05-21-01137-CR, 2022 WL 5113172, at *2

(Tex. App.—Dallas Oct. 5, 2022, no pet.) (mem. op., not designated for publication);

Shuler, 650 S.W.3d at 690. Accordingly, we sustain appellant’s second issue and

modify the trial court’s judgment and the bill of costs for the possession of a firearm

by a felon offense, trial court cause number F-22-41992, and the state jail felony

possession of a controlled substance, trial court cause number F-22-41993, to delete

the duplicative $286 in court costs.

Conclusion

We modify the trial court’s judgments and bills of costs in trial court cause

numbers F-22-41992 and F-22-41993 to delete the duplicative court costs. Those

–11– judgments, as modified, are affirmed. We also affirm the trial court’s judgment in

trial court cause number F-22-41991.

/Craig Smith/ CRAIG SMITH JUSTICE

Do Not Publish TEX. R. APP. P. 47.2(b) 230732F.U05

–12– S Court of Appeals Fifth District of Texas at Dallas JUDGMENT

WILL LEE WASHINGTON, On Appeal from the 283rd Judicial Appellant District Court, Dallas County, Texas Trial Court Cause No. F-22-41991. No. 05-23-00732-CR V. Opinion delivered by Justice Smith. Justices Goldstein and Garcia THE STATE OF TEXAS, Appellee participating.

Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.

Judgment entered this 22nd day of May, 2024.

–13– S Court of Appeals Fifth District of Texas at Dallas JUDGMENT

WILL LEE WASHINGTON, On Appeal from the 283rd Judicial Appellant District Court, Dallas County, Texas Trial Court Cause No. F-22-41992. No. 05-23-00733-CR V. Opinion delivered by Justice Smith. Justices Goldstein and Garcia THE STATE OF TEXAS, Appellee participating.

Based on the Court’s opinion of this date, we MODIFY the trial court’s judgment and bill of costs in trial court cause number F-22-41992 to delete the court costs of $286.

As MODIFIED, the judgment is AFFIRMED.

–14– S Court of Appeals Fifth District of Texas at Dallas JUDGMENT

WILL LEE WASHINGTON, On Appeal from the 283rd Judicial Appellant District Court, Dallas County, Texas Trial Court Cause No. F-22-41993. No. 05-23-00734-CR V. Opinion delivered by Justice Smith. Justices Goldstein and Garcia THE STATE OF TEXAS, Appellee participating.

Based on the Court’s opinion of this date, we MODIFY the trial court’s judgment and bill of costs in trial court cause number F-22-41993 to delete the court costs of $286.

–15–