Larry Coleman Hicks v. State ( 2020 )

NO. 12-19-00258-CR
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
LARRY COLEMAN HICKS, § APPEAL FROM THE 114TH
APPELLANT
V. § JUDICIAL DISTRICT COURT
THE STATE OF TEXAS,
APPELLEE § SMITH COUNTY, TEXAS
MEMORANDUM OPINION
A jury convicted Larry Coleman Hicks of assault on a public servant, enhanced to allege
Appellant was a habitual offender. The jury assessed his punishment at confinement for life in
the Texas Department of Criminal Justice, Institutional Division. Appellant presents seven
issues on appeal. We affirm.
BACKGROUND
Appellant met with Parole Officer Shella Coleman to discuss the conditions of his parole.
Shortly thereafter, the parole office ordered that he wear an ankle monitor.
Karl Gentry testified that he was a parole officer on May 18, 2018. On that date, Gentry
installed an ankle monitor on Appellant and a monitoring unit in his mother’s home where
Appellant lived. Gentry told Appellant to stay home over the weekend and to come into the
parole office Monday morning, May 21.
Coleman sent Gentry back to Appellant’s home on May 21, because Appellant had not
reported as instructed, and the monitoring system indicated that someone tampered with the
ankle monitor. He arrived at the house where Appellant was living at approximately 4:00 p.m.
and parked in the driveway. He knocked on the door and received no response. He found no
one in the backyard. He was about to leave when the garage door opened. Gentry stepped about
four feet into the garage. Just before entering the garage, Gentry thought he heard “hey” or
“what do you want?” Gentry responded, “Parole Officer Gentry. I’m here to check my
equipment.” Appellant stood in the doorway of the house dressed in shorts and a t-shirt. Gentry
then took a photo with his cell phone to document that Appellant was not wearing his ankle
monitor as he was required to do. This apparently enraged Appellant who charged Gentry,
cursing and howling, and swung and hit Gentry’s wrist and hand that held the cell phone.
Appellant then ran back into the house yelling, “Oh, oh, oh. I’ve got something for you.”
Gentry testified that the blow caused pain to his wrist and hand that he described as a
stinging, pulsing pain that lasted about an hour. Gentry returned to his vehicle, drove down the
street and called 9-1-1 to summon assistance. When Gentry returned with other officers to
Appellant’s house, they found the monitor base unit smashed into pieces and lying in the
driveway. Appellant refused to exit the house. A standoff ensued until a SWAT team armored
vehicle knocked the front door open, and Appellant was taken into custody.
At the conclusion of trial, the jury found Appellant guilty of assault on a public servant
and sentenced him to life in prison. This proceeding followed.
SUFFICIENCY OF THE EVIDENCE
In this first issue, Appellant maintains that the evidence is insufficient to establish that he
possessed the requisite intent required to commit the offense. In his second issue, Appellant
contends the evidence is insufficient to establish that Parole Officer Gentry sustained bodily
injury. We will address these two issues together.
Standard of Review
An appellate court reviews a challenge to the sufficiency of the evidence under the
standard of review set forth in Jackson v. Virginia. 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61
L. Ed. 2d 560 (1979); Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010). A
challenge to the sufficiency of the evidence requires the reviewing court to consider the evidence
in the light most favorable to the verdict to determine whether any rational trier of fact could
have found all the elements of the offense beyond a reasonable doubt. Jackson, 443 U.S. at 319,
99 S. Ct. at 2789; Brooks, 323 S.W.3d at 895. The jury is the exclusive judge of the credibility of
the witnesses and the weight to be given their testimony, and the reconciliation of conflicts in the
evidence. Whitaker v. State, 977 S.W.2d 595, 598 (Tex. Crim. App. 1998). “When the record
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supports conflicting inferences, we presume that the fact finder resolved the conflicts in favor of
the prosecution and therefore defer to that determination.” Clayton v. State, 235 S.W.3d 772,
778 (Tex. Crim. App. 2007).
In viewing the record, direct and circumstantial evidence are treated equally;
circumstantial evidence is as probative a direct evidence in establishing the guilt of the actor, and
circumstantial evidence alone can be sufficient to establish guilt. Id. at 778; Dansby v. State,
530 S.W.3d 213, 226 (Tex. App.—Tyler 2017, pet. ref’d).
Applicable Law
An actor commits an assault if he “intentionally, knowing, or recklessly causes bodily
injury to another. TEX. PENAL CODE ANN. § 22.01(a)(1) (West Supp. 2019). The Texas Penal
Code defines “bodily injury” as “physical pain, illness, or any impairment of physical condition.”
Id. § 1.07(a)(8) (West Supp. 2019). The testimony of the victim that he or she suffered physical
pain is legally sufficient to establish the element of “bodily injury.” See Laster v. State, 275
S.W.3d 512, 524 (Tex. Crim. App. 2009). When considering whether evidence is sufficient to
establish that a victim suffered pain, juries may use common sense and apply common
knowledge, observation, and experience gained in ordinary affairs of life, using inferences that
reasonably could be drawn from the evidence. Wawrykow v. State, 866 S.W.2d 87, 88-89 (Tex.
App.—Beaumont 1993, pet. ref’d).
Intent is typically proven through circumstantial evidence and may be inferred from a
defendant’s words or conduct. State v. Fuller, 480 S.W.3d 812, 823 (Tex. App.—Texarkana
2015, pet. ref’d). Circumstantial evidence of an accused’s mental state must be reviewed with
the same scrutiny as other elements of an offense. Laster, 275 S.W.3d at 519-20. The statutory
definition of “bodily injury” includes “even relatively minor physical contact if it constitutes
more than offensive touching.” Id. at 524. The jury may infer the existence of the culpable
mental state from any acts tending to prove its existence, including the acts, words, and conduct
of the accused, the method of committing the crime, and the wounds inflicted on the victims.
Hart v. State, 89 S.W.3d 61, 64 (Tex. Crim. App. 2002); Dobbins v. State, 228 S.W.3d 761, 765
(Tex. App.—Houston [14th Dist.] 2007, pet. dism’d).
The legal sufficiency of the evidence is measured by the elements of the offense as
defined by a hypothetically correct jury charge. Malik v. State, 953 S.W.2d 234, 240 (Tex.
Crim. App. 1997). A “hypothetically correct” jury charge is “one that accurately sets out the
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law, is authorized by the indictment, does not unnecessarily increase the State’s burden of proof
or unnecessarily restrict the State’s theories of liability, and adequately describes the particular
offense for which the defendant was tried.” Id.
There are three conduct elements which may be involved in any offense: (1) the nature
of the conduct; (2) the result of the conduct; and (3) the circumstances surrounding the conduct.
Cook v. State, 884 S.W.2d 485, 487 (Tex. Crim. App. 1994). A proper jury charge limits the
definitions of the applicable culpable mental states to include only the language regarding the
relevant conduct elements. In re I.L., 389 S.W.3d 445, 450 (Tex. App.—El Paso 2012, no pet.)
Assault causing bodily injury is a result oriented offense. Landrian v. State, 268 S.W.3d 532,
536 (Tex. Crim. App. 2008). Therefore, the definitions of the culpable mental states
(intentionally, knowingly, or recklessly) should be limited to include the result of conduct
element. In Re I.L., 389 S.W.3d at 451. So limited the culpable mental states alleged should be
defined as follows:
A person acts intentionally, or with intent, with respect to a result of his conduct when it is his
conscious objective or desire to cause the result. A person acts knowingly, or with knowledge,
with respect to a result of his conduct when he is aware that his conduct is reasonably certain to
cause the result. A person acts recklessly, or is reckless, with respect to the result of his conduct
when he is aware of but consciously disregards a substantial and unjustifiable risk that the result
will occur.
Price, 457 S.W.3d at 443.
Discussion
The indictment charged that Appellant did intentionally, knowingly, and recklessly cause
bodily injury to Gentry by striking him with his hand and that Appellant did then and there know
that Gentry was a public servant lawfully discharging an official duty. Appellant acknowledges
that he intentionally slapped the cell phone from Gentry’s hand. But he argues that there was no
evidence that he acted with the culpable mental state required for conviction. Common
experience justified the jury’s belief that Appellant knew that physical pain would naturally
accompany a blow delivered with force sufficient to knock a cell phone from a grown man’s
hand. The jury was entitled to infer from the sudden and violent nature of the attack that
Appellant knew that hitting Gentry’s hand was reasonably certain to cause pain. The jury was
also entitled to infer from Appellant’s language and conduct that, although aware of the
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substantial and unjustified risk of injury to Gentry, Appellant consciously disregarded it. The
evidence is sufficient to support the jury’s implicit finding of the culpable mental state alleged.
Appellant also insists there is no objective evidence that Gentry suffered pain as a result
of the assault. Gentry did not seek medical attention after the assault. There was no evidence of
visible injury to Gentry’s hand or wrist. In reporting the assault to Deputy Steve Dunklin almost
immediately thereafter, Gentry told Dunklin, “He hit my hand. That’s assault on a public
servant.” Appellant argues that Gentry did not tell Deputy Dunklin that he felt pain.
Gentry testified at trial that he felt a “stinging, pulsing pain” in his wrist and hand “for
about an hour” after the assault. Dunklin stated in his testimony that Gentry said he felt pain
when Appellant struck him and that he included this fact in his report. Gentry’s trial testimony
regarding the pain inflicted by Appellant’s blow is sufficient, in itself, to establish the element of
bodily injury. See Laster, 275 S.W.3d at 524.
Viewing the evidence in the light most favorable to the State, we conclude that the
evidence is sufficient to prove Appellant’s culpable mental state and Gentry’s injury.
Appellant’s first two issues are overruled.
ADMISSION OF EVIDENCE
In issue three, Appellant complains that the trial court abused its discretion in admitting
testimony that officers found a gun in Appellant’s mother’s bedroom after he was arrested. Prior
to testimony, the State informed the court that it intended to offer testimony that the officers
found a pistol in the house where Appellant lived. Out of the presence of the jury, the court
overruled Appellant’s objections that evidence of the pistol was not relevant to the charged
offense and was unduly prejudicial.
Deputy Dunklin subsequently testified that when officers entered the home after the end
of the standoff and after Appellant’s arrest, they found a nine shot .22 caliber revolver on top of a
chest of drawers in the bedroom of his mother, who owned the home. No evidence linked the
gun to Appellant. Appellant argues this testimony constituted evidence of an extraneous offense
with no proof that he committed the offense. Appellant also maintains that evidence of the
pistol’s presence was unrelated to any issue in the case.
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Standard of Review
An appellate court reviews the trial court’s decision to admit or exclude evidence for
abuse of discretion. See Zuliani v. State, 97 S.W.3d 589, 595 (Tex. Crim. App. 2003). An abuse
of discretion in the admission of evidence occurs when the decision is so clearly wrong as to lie
outside the zone within which reasonable persons might disagree. McDonald v. State, 179
S.W.3d 571, 576 (Tex. Crim. App. 2005).
Applicable Law
In a case where the court has overruled an objection to evidence, the ruling usually will
not be reversible error when the same evidence is subsequently admitted without objection. See
Massey v. State, 933 S.W.2d 141, 149 (Tex. Crim. App. 1996). However, an exception to this
rule is that the harmful effect of improperly admitted evidence is not cured by the fact that the
defendant sought to meet, destroy or explain it by introducing rebutting evidence. Leday v.
State, 983 S.W.2d 713, 718-19 (Tex. Crim. App. 1998). Testimony elicited during cross-
examination may come within the exception. Valcarcel v. State, 765 S.W.2d 412, 418 (Tex.
Crim. App. 1989).
Evidence of an extraneous offense “is not admissible to prove a person’s character in
order to show that on a particular occasion the person acted in accordance with the character.”
TEX. R. EVID. 404(b)(1). An extraneous offense is not admissible unless the State clearly proves
the defendant committed it, that it is relevant to a material issue, and that its probative value is
not substantially outweighed by its prejudicial effect. Wyle v. State, 777 S.W.2d 709, 715 (Tex.
Crim. App. 1989). A defendant may respond to evidence of an extraneous offense admitted over
objection. Leday, 983 S.W.2d at 718 n.9.
An adverse ruling on a pretrial motion to suppress evidence will ordinarily suffice to
preserve error on appeal, and a defendant need not specifically object to the evidence when it is
later offered at trial. Thomas v. State, 408 S.W.3d 877, 881 (Tex. Crim. App. 2013). An
affirmative statement of “no objection” will ordinarily constitute a waiver of the right to raise on
appeal the error that was previously preserved. Id. at 881-82. The court of criminal appeals has
stated that the application of this rule is context dependent.
By that we mean that an appellate court should not focus exclusively on the statement itself, in
isolation, but should consider it in the context of the entirety of the record. If the record as a
whole plainly demonstrates that the defendant did not intend, nor did the trial court construe, his
“no objection” statement to constitute an abandonment of a claim of error that he had earlier
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preserved for appeal, then the appellate court should not regard the claim as “waived,” but should
resolve it on the merits. On the other hand, if from the record as a whole the appellate court
simply cannot tell whether an abandonment was intended or understood, then, consistent with
prior case law, it should regard the “no objection” statement to be a waiver of the earlier-preserved
error. Under the latter circumstances, the affirmative “no objection” statement will, by itself,
serve as an unequivocal indication that a waiver was both intended and understood.
Id. at 885-86.
Discussion
The State does not respond to Appellant’s arguments attacking the trial judge’s ruling
admitting the challenged evidence. The State contends that, after the trial court’s ruling,
Appellant waived or abandoned his claim of error for purposes of appeal. The State cites
multiple instances during trial which it claims indicate Appellant’s abandonment of his objection
to the pistol evidence. Appellant did not object to the State’s mention of the pistol during its
opening statement. Appellant, in his opening statement, mentioned “there was a gun.” When the
State offered pictures in which the pistol was shown, Appellant stated, “No objection to the
offer.” Appellant did not object to a witness discussing what was depicted in the photographs of
the pistol. He did not object to a patrol sergeant’s testimony concerning a “.22 firearm” possibly
being in Appellant’s house, and the danger it could pose to officers. Appellant cross examined
the same witness about “the gun being in the house.” When questioning Investigator Ron
Rathbun, defense counsel elicited testimony about the “.22 caliber handgun.” During closing
arguments, Appellant did not object to the prosecutor’s mention of the threat of gunfire.
Appellant insists that because he objected and obtained an adverse ruling outside the
presence of the jury, he did not have to reiterate his objection before the jury at every mention of
the pistol during the opening statements, the testimony, or final arguments. Appellant insists that
his counsel did not intend to abandon the objection when he said, “No objection to the offer”
when the State offered pictures with the pistol in the background. Appellant argues that his
counsel must have failed to see the pistol in the pictures when he stated that he had no objection.
Appellant argues he did not abandon the claim of error, because there was “no sound strategic
reason” to do so.
The pistol was found in the bedroom of Appellant’s mother. She owned the house.
There was no evidence linking the pistol to Appellant. An extraneous offense is inadmissible
unless the Sate proves beyond a reasonable doubt that the defendant committed it. Harrell v.
State, 884 S.W.2d 154, 160 (Tex. Crim. App. 1994). Further, the presence of the gun in his
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mother’s bedroom was unrelated to proof of any element of the charged offense. Since evidence
of the extraneous offense was not relevant to the issues in the case, it had no probative value.
Therefore, it is clear that the danger of unfair prejudice of the pistol evidence substantially
outweighed its negligible probative value. See TEX. R. EVID. 403. We conclude that the trial
court erred in overruling Appellant’s objection to the evidence of the pistol.
Although not defending the lower court’s ruling, the State argues that Appellant’s later
statement of “no objection” forfeited the earlier preserved error.
Even if we assume error was preserved and not waived or abandoned, it is still subject to
a harmless error review. The improper admission of an extraneous offense is non constitutional
error and must be disregarded under Texas Rule of Appellate Procedure 44.2(b) unless it affected
the defendant’s substantial rights. A substantial right is affected where the error had a substantial
and injurious effect or influence on the jury’s verdict. King v. State, 953 S.W.2d 266, 271 (Tex.
Crim. App. 1997). Substantial rights are not affected by the erroneous admission of evidence if,
after examining the record as a whole, we have a fair assurance that the error did not influence
the jury, or had but a slight affect. Motilla v. State, 78 S.W.3d 352, 355 (Tex. Crim. App. 2002).
To assess the likelihood that the error adversely affected the jury’s decision, we consider the
entire record. Id. The reviewing court must consider the character of the alleged error, and how
it might be considered with other evidence, the extent the error was emphasized by the State, and
the weight a juror would likely place on the error. Id. at 355-56. Evidence of guilt is a factor in
any thorough harm analysis. Id. at 358. If the error was of the magnitude to prejudice the jury’s
evaluation of the evidence, the conviction is tainted despite overwhelming evidence of the
defendant’s guilt. Harris v. State, 790 S.W.2d 568, 588 (Tex. Crim. App. 1989).
There is nothing in the record showing Appellant ever had the pistol in his possession.
The Sheriff’s deputies were not aware of the pistol in the house until Appellant’s sister asked her
mother if there was a gun in the house. The mother, who was not in the house during the
standoff, said the pistol was on the highboy. That is where the officers found it when they finally
entered the house. However, the prosecution repeatedly alluded to the danger presented by the
pistol.
The pistol evidence could have had little influence on the jury’s determination that
Gentry was a parole officer or that he felt pain when Appellant struck his wrist and hand.
Extraneous offense evidence tends to show that the defendant is a bad person generally.
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Therefore, it may improperly contribute to the severity of punishment imposed. In this case,
Appellant had seven felony convictions. He had violated previous probations and absconded
when placed on parole. When this assault occurred, he was on parole from serving a previous
sentence for assault on a public servant. The standoff Appellant caused did not end until a
SWAT team used an armored vehicle to breach the front door of his mother’s house.
Having considered the entire record, we conclude that the error did not influence the
jury’s decision on Appellant’s conviction or punishment, or had but slight effect. Appellant’s
third issue is overruled.
EXCLUSION OF EVIDENCE
In his fourth issue, Appellant contends the trial court abused its discretion in excluding
testimony that the Parole Board fired Gentry for misconduct involving a parolee under his
supervision.
Prior to trial, the State filed a motion in limine to prevent Appellant from introducing
evidence that Gentry had engaged in inappropriate conduct as a parole officer. On August 9,
2018, a parolee complained that Gentry attempted to establish an inappropriate relationship with
her between October 2016 and December 2017. The Office of the Inspector General, after
conducting an investigation, concluded that Gentry “did engage in an improper
employee/offender relationship” by giving a video game to the parolee’s children. Shortly
thereafter, Gentry was no longer employed as a parole officer.
During trial, without objection, the State elicited testimony from Gentry that he had
testified before Appellant’s parole hearing in August 2018 that he felt pain when Appellant
struck him. This statement was consistent with his earlier testimony in this case. On cross
examination, Appellant contended to the trial court that the State’s introduction of a specific
prior consistent statement permitted the defense to introduce specific prior acts of the witness
reflecting on his credibility.
On appeal, Appellant contends the trial court erred in excluding the evidence showing
motive or bias, because it showed “Gentry had a motive to be a complainant in a criminal case,
because he knew that a [former] female parolee was lurking in the shadows who could (and did)
cost him his job.” Appellant also argues on appeal that the trial court should have admitted the
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evidence to correct the false impression that Gentry was a parole officer in good standing at the
time of trial.
At trial, Appellant sought to introduce evidence of Gentry’s past conduct in order to
attack his general character for truthfulness. The trial court sustained the State’s objection that it
was (1) an irrelevant collateral matter, and (2) it was barred by Texas Rule of Evidence 608(b)
as an inquiry into a specific instance of the witness’s conduct to attack his character for
truthfulness.
The grounds for the admission of the OIG report argued on appeal do not comport with
those presented to the trial court and no error was preserved. See Guevara v. State, 97 S.W.3d
579, 583 (Tex. Crim. App. 2003). Moreover, only the most improbable reasoning supports
Appellant’s argument that the Inspector General’s report would have exposed bias or motive.
There was no evidence at trial that Gentry was presently a parole officer. If Appellant wanted
the jury to know that Gentry was no longer a parole officer, he needed only to have asked him on
cross examination.
Appellant’s forth issue is overruled.
FAILURE TO INSTRUCT JURY ON LESSER INCLUDED OFFENSE
In his fifth issue, Appellant contends the trial court erred in failing to submit to the jury
an instruction on Class A assault.
Standard of Review and Applicable Law
A trial court’s denial of a lesser included offense instruction is reviewed for abuse of
discretion. See Threadgill v. State, 146 S.W.3d 654, 666 (Tex. Crim. App. 2004). When
determining whether the trial court properly refused a request for a lesser included offense
instruction, the appellate court reviews all of the evidence presented at trial. Rousseau v. State,
855 S.W.2d 666, 673 (Tex. Crim. App. 1993).
Upon the defendant’s request, the trial court must include a lesser included offense
instruction in the jury charge when (1) the requested charge is for a lesser included offense of the
charged offense, and (2) there is some evidence that, if the defendant is guilty, he is guilty of
only the lesser offense. Guzman v. State, 188 S.W.3d 185, 188 (Tex. Crim. App. 2006). To
entitle the defendant to a lesser included offense instruction, “it is not enough that the jury may
disbelieve crucial evidence pertaining to the greater offense, but rather, there must be some
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evidence directly germane to the lesser-included offense for the finder of fact to consider before
an instruction on a lesser-included offense is warranted.” Sweed v. State, 351 S.W.3d 63, 68
(Tex. Crim. App. 2011) (quoting Skinner v. State, 956 S.W.2d 532, 543 (Tex. Crim. App. 1997),
cert. denied, 523 U.S. 1079, 118 S. Ct. 1526, 140 L. Ed. 2d 677 (1998)). More than a scintilla of
evidence requires the submission of a lesser included offense instruction. Id. A defendant
charged with assault on a public servant is entitled to an instruction on Class A misdemeanor
assault if evidence from any source raises a fact question as to whether he knew the complainant
was a public servant. See Drew v. State, 735 S.W.2d 655, 657-58 (Tex. App.—Austin 1987, pet.
ref’d).
Discussion
Appellant interprets the evidence as raising a fact question as to whether he knew that
Gentry was a parole officer at the time of their encounter in the garage. He argues that the jury
could have concluded that Gentry did not tell him he was a parole officer when Gentry installed
the ankle monitor on May 18. He also contends that the jury could also have determined that,
when Gentry returned three days later, Gentry did not identify himself as a parole officer, or, if
he did, Appellant did not hear him or did not believe him because of his appearance.
There was no evidence offered at trial that Appellant was unaware that Gentry was a
parole officer when he placed the monitor on Appellant’s leg. There is no evidence that when
Gentry returned three days later, he did not announce, “Parole Officer Gentry. I’m here to check
my equipment.”
The conclusions argued for by Appellant would depend solely on the jury’s disbelief in
the trial evidence. This is insufficient. There must be some evidence “directly germane” to the
lesser included offense that would warrant an instruction. Sweed, 351 S.W.3d at 68. There is no
such evidence in the record.
Appellant’s fifth issue is overruled.
CUMULATIVE ERROR
In his sixth issue, Appellant maintains the cumulative effect of the trial court’s errors
denied him a fair trial.
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Applicable Law
A number of errors may be found harmful in their cumulative effect even if each error,
considered separately, would be harmless. Linney v. State, 413 S.W.3d 766, 767 (Tex. Crim.
App. 2013); see also Chamberlain v. State, 998 S.W.2d 230, 238 (Tex. Crim. App. 1999). “A
string of harmless errors does not arithmetically create reversible, cumulative error.” Linney,
413 S.W.3d at 767 (Cochran, J., concurring in refusal of pet.). Instead the court looks for
multiple errors that acting together achieve “the critical mass necessary to cast a shadow on the
integrity of the verdict.” Id.
Discussion
We have determined that the trial court erred only in admitting evidence of the pistol in
Appellant’s mother’s house, an error which we determined is harmless. We have found no other
errors to cumulate with the sole error found. Nonerrors may not in their cumulative effect cause
error. See Chamberlain, 998 S.W.2d at 238.
Appellant’s sixth issue is overruled.
CRUEL AND UNUSUAL PUNISHMENT
In his seventh issue, Appellant contends that the life sentence imposed on him as a
habitual offender constitutes cruel and unusual punishment in violation of the Eighth
Amendment. Appellant argues that, viewed in the light most favorable to the verdict, the record
shows that he did no more than slap a cell phone out of a public servant’s hand, causing transient
pain but leaving no visible injury and requiring no medical attention. Therefore, in Appellant’s
view, the life sentence imposed is grossly disproportionate to the offense.
The State contends that since Appellant raised no objection in the trial court, he has
waived the issue on appeal. The State also argues that, even absent waiver, Appellant’s Eighth
Amendment claim is meritless.
Applicable Law
The Eighth Amendment forbids sentences that are grossly disproportionate to the crime
for which the defendant has been convicted. U.S. CONST. amend. VIII; see also Solem v. Helm,
463 U.S. 277, 290, 103 S. Ct. 3001, 3010, 77 L. Ed. 2d 637 (1983). Factors that may be used in
determining the proportionality of a sentence are (1) the gravity of the offense and the harshness
of the penalty, (2) the sentences imposed on other criminals in the same jurisdiction, and (3) the
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sentences imposed for the same crime in other jurisdictions. Solem 463 U.S. at 292, 103 S. Ct. at
3011. However, if the threshold comparison of the gravity of the offense against the severity of
the sentence shows that the sentence is not grossly disproportionate, the reviewing court need not
consider the last two factors of the Solem test. McGruder v. Puckett, 954 F.2d 313, 316 (5th
Cir. 1992). The severity of the sentence imposed on a habitual offender should not be compared
with the seriousness of the most recent offense, as it stands alone, but in light of the offender’s
prior offenses. Id.
Without an objection in the trial court raising the issue of cruel and unusual punishment,
the issue is waived on appeal. See Rhoades v. State, 934 S.W.2d 113, 120 (Tex. Crim. App.
1996) (waiver with regard to rights under the Texas Constitution); Curry v. State, 910 S.W.2d
490, 497 (Tex. Crim. App. 1995) (waiver with regard to rights under United States Constitution);
Robertson v. State, 245 S.W.3d 545, 549 (Tex. App.—Tyler 2007, pet. ref’d).
Discussion
Appellant argues that an Eighth Amendment claim that the sentence is disproportionate to
the crime committed should be cognizable on appeal despite the absence of an objection at trial,
“because it does not become ripe until the jury returns a verdict, at which time an objection
would be futile because the trial court cannot correct the error.” Appellant insists that freedom
from cruel and unusual punishment is a right “so fundamental to the proper functioning of our
adjudicatory process” that it should not be considered forfeited on appeal unless the record
reflects that it has been “plainly, freely, and intelligently” waived at trial. In Proenza v. State,
541 S.W.3d 786 (Tex. Crim. App. 2017), the court of criminal appeals held that the right to be
tried in a proceeding devoid of improper judicial commentary is a right that will not be
considered waived on appeal unless the record clearly reflects that the appellant “plainly, freely,
and intelligently” waived that right at trial. Id. at 801. Appellant maintains that in light of
Proenza, the court of criminal appeals is unlikely to require a trial objection to preserve an
Eighth Amendment claim on appeal.
Even if we assume that no trial objection was required to preserve error, Appellant still
cannot prevail. In this case, Appellant was convicted of assaulting a public servant for the
second time. He had accumulated six other felony convictions. He had violated the conditions
of the several probated sentences he had received. When granted parole, he absconded. His last
arrest came after a protracted standoff only ended by the use of the SWAT team’s specially
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modified armored personnel carrier. In determining whether Appellant’s sentence is
unconstitutionally disproportionate, Appellant’s record must be considered in light of the
defendant’s record as a habitual offender and the Supreme Court’s holding in Rummel v. Estelle,
445 U.S. 263, 100 S. Ct. 1133, 63 L. Ed. 2d 382 (1980). Rummel received a mandatory life
sentence under a prior version of the Texas habitual offender statute for three nonviolent
property crimes where the total amount taken in all three crimes amounted to just under $230.
445 U.S. at 265-66, 100 S. Ct. at 1135. The Supreme Court held that the mandatory life sentence
imposed on Rummel did not constitute cruel and unusual punishment. 445 U.S. at 285, 100 S.
Ct. at 1145. In light of Rummel, Appellant’s sentence is not unconstitutionally disproportionate.
Absent a threshold showing of disproportionality, we need not apply the second and third Solem
elements.
Appellant’s seventh issue is overruled.
DISPOSITION
The judgment of the trial court is affirmed.
BILL BASS
Justice
Opinion delivered September 9, 2020.
Panel consisted of Worthen, C.J., Neeley, J., and Bass, Retired J., Twelfth Court of Appeals,
sitting by assignment.
(DO NOT PUBLISH)
14
COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
JUDGMENT
SEPTEMBER 9, 2020
NO. 12-19-00258-CR
LARRY COLEMAN HICKS,
Appellant
V.
THE STATE OF TEXAS,
Appellee
Appeal from the 114th District Court
of Smith County, Texas (Tr.Ct.No. 114-0976-18)
THIS CAUSE came to be heard on the appellate record and briefs filed
herein, and the same being considered, it is the opinion of this court that there was no error in the
judgment.
It is therefore ORDERED, ADJUDGED and DECREED that the judgment of
the court below be in all things affirmed, and that this decision be certified to the court below
for observance.
Bill Bass, Justice.
Panel consisted of Worthen, C.J., Neeley, J., and Bass, Retired J., Twelfth Court of
Appeals, sitting by assignment.