Donald Dwayne Graves v. State ( 2018 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-17-00045-CR
DONALD DWAYNE GRAVES APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM THE 371ST DISTRICT COURT OF TARRANT COUNTY
TRIAL COURT NO. 1445831D
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MEMORANDUM OPINION1
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Appellant Donald Dwayne Graves appeals from his conviction for the first-
degree felony offense of aggravated assault and from the resulting life sentence.
See Tex. Penal Code Ann. § 22.02(b)(1) (West 2011). He argues that he is
entitled to a new trial based on the gross disproportionality of his sentence as
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See Tex. R. App. P. 47.4.
compared to the offense and based on a jury-charge error. Finding no reversible
error, we affirm the trial court’s judgment.
I. BACKGROUND
Graves and Debra Ransom went to high school together and reconnected
years later. Graves moved to Texas and lived with Ransom, and the two
became engaged. On the morning of February 20, 2016, Graves got out of bed,
went to the bathroom, and returned to the bedroom with a handgun. He pointed
the gun at Ransom and told her that he was going to shoot her. Thinking he was
joking, Ransom told him to put the gun away. Graves responded, “Are you just
going to sit there, or are you going to call 911?” Ransom then called 911. The
call was answered by her daughter, who worked as a 911 dispatcher. Ransom’s
daughter instructed her to walk to the front door of her home and unlock it. After
following her daughter’s instructions, Ransom attempted to reason with Graves,
but he shot her in the left cheekbone from approximately six feet away. Graves
then shot himself in the head. He and Ransom were rushed to the hospital; both
lived.
As a result of the shooting, however, Ransom’s teeth were shattered, she
had blood on her brain, and she also sustained a broken left jawbone, broken
bones in her neck, lung bruising, and severe damage to her vertebral artery. She
has since experienced difficulty using the bathroom on her own, standing and
walking without assistance, feeding herself, and cutting her own food. She also
suffers from hallucinations.
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At trial, a jury found Graves guilty of aggravated assault. During
sentencing, the trial court instructed the jury on the possible effects of good-
conduct time and parole on Graves’s sentence:
Under the law applicable in this case, the Defendant, if sentenced to
a term of imprisonment, may earn time off the period of incarceration
imposed through the award of good conduct time. Prison authorities
may award good conduct time to a prisoner who exhibits good
behavior, diligence in carrying out prison work assignments, and
attempts at rehabilitation. If a prisoner engages in misconduct,
prison authorities may also take away all or part of any good conduct
time earned by the prisoner.
It is also possible that the length of time for which the
Defendant will be imprisoned might be reduced by the award of
parole.
Under the law applicable in this case, if the Defendant is
sentenced to a term of imprisonment, he will not become eligible for
parole until the actual time served equals one-half of the sentence
imposed or 30 years, whichever is less, without consideration of any
good conduct time he may earn. Eligibility for parole does not
guarantee that parole will be granted.
It cannot accurately be predicted how the parole law and good
conduct time might be applied to this Defendant if he is sentenced to
a term of imprisonment, because the application of these laws will
depend on decisions made by prison and parole authorities.
You may consider the existence of the parole law and good
conduct time. However, you are not to consider the extent to which
good conduct time may be awarded to or forfeited by this particular
Defendant. You are not to consider the manner in which the parole
law may be applied to this particular Defendant.
See Tex. Code Crim. Proc. Ann. art. 37.07, § 4(a) (West Supp. 2017).
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The jury assessed a life sentence. Graves now appeals and contends that
the sentence is grossly disproportionate to his offense. He also asserts that the
instruction regarding good-conduct time and parole was harmful error.
II. DISPROPORTIONATE SENTENCING
In Graves’s first point, he argues that the sentence assessed by the jury is
grossly disproportionate to the committed offense and, therefore, violates the
Eighth Amendment’s prohibition on cruel and unusual punishment. To preserve a
complaint on appeal, the issue must be raised to the trial court “by a timely
request, objection, or motion.” Tex. R. App. P. 33.1(a); see Curry v. State,
910 S.W.2d 490, 497 (Tex. Crim. App. 1995) (holding constitutional rights can be
forfeited if not properly raised). Graves did not raise this issue to the trial court at
any point during sentencing. After the trial court imposed the sentence in open
court, Graves had thirty days to file a motion for new trial but, instead, raises the
issue for the first time on appeal. Tex. R. App. P. 21.4(a). He has, thereby,
failed to preserve his complaint for our review. See Kim v. State, 283 S.W.3d
473, 475 (Tex. App.—Fort Worth 2009, pet. ref’d) (holding sentencing complaint
waived because defendant did not raise in motion for new trial).
But even if Graves had preserved his complaint, his sentence does not
meet the exceedingly high threshold to be considered grossly disproportionate to
his offense. When assessing the proportionality of a sentence, the court first
considers the gravity of the offense compared with the harshness of the penalty.
Moore v. State, 54 S.W.3d 529, 542 (Tex. App.–Fort Worth 2001, pet. ref’d). If
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this comparison reveals that Graves’s sentence is proportionate to the offense,
we need not look any further. Harmelin v. Michigan, 501 U.S. 957, 960 (1991);
Moore, 54 S.W.3d at 542. Generally, punishments assessed within statutory
limits are proportionate and should be upheld. See State v. Simpson,
488 S.W.3d 318, 323 (Tex. Crim. App. 2016). Aggravated assault of a family
member is a first-degree felony, punishable by imprisonment “for life or any term
of not more than 99 years or less than 5 years.” Tex. Penal Code Ann. § 12.32
(West 2011); see id. § 22.02(b)(1). Graves’s punishment fits within the
sentencing range allowed by statute. Furthermore, Graves aimed a loaded
handgun at his girlfriend and shot her in the face, causing irreparable damage.
Based on the facts, the sentence is neither excessive nor grossly
disproportionate. See Ory v. State, No. 05-13-00172-CR, 2014 WL 3401714, at
*1 (Tex. App.—Dallas July 10, 2014, no pet.) (mem. op., not designated for
publication) (holding 48-year sentence for aggravated assault of a public servant
was proportionate even though defendant had no prior criminal record, had a
history of mental illness, did not always take his medications, and had the intent
to assault the officer). We overrule point one.
III. JURY CHARGE
In Graves’s second point, he argues that the trial court violated his
constitutional rights to due process and due course of law by including in the jury
charge an instruction regarding good-conduct time and parole. The instructions
regarding the possible effects of good-conduct time and parole on a defendant’s
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sentence are statutorily required even if they are inapplicable to a particular
defendant. See Tex. Code Crim. Proc. Ann. art. 37.07, § 4(a); see also Luquis v.
State, 72 S.W.3d 355, 363 (Tex. Crim. App. 2002). The instructions do not
violate a defendant’s rights to due process or to due course of law. Luquis,
72 S.W.3d at 364–68. Therefore, the trial court did not err by including the
instruction even though inapplicable to Graves. See Sanders v. State,
255 S.W.3d 754, 765–66 (Tex. App.—Fort Worth 2008, pet. ref’d). We overrule
point two.
IV. CONCLUSION
Having overruled Graves’s points, we affirm the trial court’s judgment.
See Tex. R. App. P. 43.2(a).
/s/ Lee Gabriel
LEE GABRIEL
JUSTICE
PANEL: GABRIEL, KERR, and PITTMAN, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: February 15, 2018
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