Joshua Powell v. the State of Texas ( 2023 )

NUMBER 13-22-00440-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
JOSHUA POWELL, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 347th District Court
of Nueces County, Texas.
MEMORANDUM OPINION
Before Justices Tijerina, Silva, and Peña
Memorandum Opinion by Justice Silva
Appellant Joshua Powell was charged with attempted capital murder, a first-degree
felony. See TEX. PENAL CODE ANN. §§ 19.03, 12.31, 12.32(a), 15.01(d). Powell pleaded
guilty pursuant to an open plea, and following a jury trial on punishment, a jury assessed
life imprisonment. By a single issue, Powell asserts his sentence is grossly
disproportionate and in violation of the Eighth and Fourteenth Amendment. See U.S.
CONST. amends. VIII, XIV. We affirm.
I. BACKGROUND
On August 4, 2021, following complaints of a possible domestic disturbance,
Corpus Christi Police Department Officer Manuel Dominguez was dispatched to an
apartment where Powell resided with his mother Olga Robles, his girlfriend Annabelle
Uballe, and their three young children. Robles greeted Officer Dominguez and notified
him that Powell had retreated to his bedroom, which Powell shared with Uballe and their
children.
According to Uballe, while Officer Dominguez was outside speaking to Robles,
Powell retrieved his .22 caliber pistol from a nearby dresser drawer and told her “if a cop
came in . . . he would shoot.” Officer Dominguez knocked on the bedroom door,
identifying himself and requesting to speak with Powell. Shortly thereafter, the door
opened, Powell removed his gun from his waistband, and began shooting. Uballe grabbed
their three children and shielded them on the floor.
Powell shot Officer Dominguez a total of eleven times, striking Officer Dominguez’s
face, arm, chest, and back of the head. Officer Dominguez testified that after he was shot,
he stumbled towards the kitchen, where he collapsed. As Officer Dominguez attempted
to “crawl out” of the residence, Powell followed him. “I was thinking maybe he would try
to run or something to that effect. But he followed me and kept on shooting me and
shooting me,” testified Officer Dominguez. At one point, Powell began hitting Officer
Dominguez with the gun itself. The entire exchange was captured on Officer Dominguez’s
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body cam—including periods of time which Officer Dominguez had no recollection of,
such as, radioing for backup and advising dispatch that he had been shot. Police arrived
to find Officer Dominguez in the living room, bleeding profusely; his right eye was bulging
from its socket. Powell fled and was later apprehended.
Prior to trial, Powell acknowledged that he understood that the range of
punishment for the offense of attempted capital murder is confinement for no less than
five years and no more than ninety-nine years or life. Having acknowledged this, Powell
pleaded guilty to attempted capital murder. The jury assessed punishment at life, and no
objection related to excessive or disproportionate sentencing was raised. This appeal
followed.
II. PUNISHMENT
An allegation of excessive or disproportionate punishment is a legal claim
“embodied in the Constitution’s ban on cruel and unusual punishment” and based on a
“narrow principle that does not require strict proportionality between the crime and the
sentence.” State v. Simpson, 488 S.W.3d 318, 322–24 (Tex. Crim. App. 2016) (citing
Harmelin v. Michigan, 501 U.S. 957, 1001 (1991) (Kennedy, J., concurring)); see U.S.
CONST. amend. VIII (“Excessive bail shall not be required, nor excessive fines imposed,
nor cruel and unusual punishments inflicted.”); see also Meadoux v. State, 325 S.W.3d
189, 193 (Tex. Crim. App. 2010) (acknowledging that the Eighth Amendment is applicable
to the states by virtue of the Fourteenth Amendment (citing Robinson v. California, 370
U.S. 660, 666–67 (1962))). A successful challenge to proportionality is exceedingly rare
and requires a finding of “gross disproportionality.” Simpson, 488 S.W.3d at 322–23
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(citing Lockyer v. Andrade, 538 U.S. 63, 73 (2003)); Trevino v. State, 174 S.W.3d 925,
928 (Tex. App.—Corpus Christi–Edinburg 2005, pet. ref’d).
However, to preserve for appellate review a complaint that a sentence is grossly
disproportionate or cruel and unusual, a defendant must present to the trial court a “timely
request, objection, or motion” stating the specific grounds for the ruling desired. TEX. R.
APP. P. 33.1(a); see Smith v. State, 721 S.W.2d 844, 855 (Tex. Crim. App. 1986) (“It is
well settled that almost every right, constitutional and statutory, may be waived by the
failure to object.”); Toledo v. State, 519 S.W.3d 273, 284 (Tex. App.—Houston [1st Dist.]
2017, pet. ref’d) (concluding defendant had failed to preserve disproportionate-
sentencing complaint); see also Ware v. State, No. 05-22-00303-CR, 2023 WL 3070938,
at *1 (Tex. App.—Dallas Apr. 25, 2023, no pet.) (mem. op., not designated for publication)
(concluding same where appellant was convicted to a term of life imprisonment for a
nonviolent offense).
At no time prior to this appeal did Powell argue that the sentence imposed was
disproportionate to the offense charged or in violation of his constitutional rights. 1
Accordingly, Powell failed to preserve his complaint for review. See TEX. R. APP. P.
33.1(a); Trevino, 174 S.W.3d at 928; see generally Wood v. State, 560 S.W.3d 162, 168
1 During the pendency of this appeal, Powell filed a pro se letter entitled “Motion to Abate the
Appeal for an Out of Time Motion for New Trial.” However, Powell is represented by counsel on appeal,
and he is not entitled to hybrid representation. See Scheanette v. State, 144 S.W.3d 503, 505 n.2 (Tex.
Crim. App. 2004) (reaffirming appellant does not have a right to hybrid representation on appeal); see also
Benson v. State, No. 13-19-00519-CR, 2021 WL 4202150, at *4 (Tex. App.—Corpus Christi–Edinburg Sept.
16, 2021, pet. ref’d) (mem. op., not designated for publication) (same). Therefore, we do not address his
pro se motion. See Ex parte Bohannan, 350 S.W.3d 116, n.1 (Tex. Crim. App. 2011) (“We have received
numerous documents from applicant himself, but applicant is represented by counsel and is not entitled to
hybrid representation. . . . Because applicant is represented by counsel, we disregard his numerous pro se
submissions and take no action on them.”) (citations omitted).
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(Tex. Crim. App. 2018) (“Appellant’s life sentence, which falls within the punishment range
for attempted capital murder, is not an illegal sentence.”); Cisneros v. State, 622 S.W.3d
511, 521 (Tex. App.—Corpus Christi–Edinburg 2021, no pet.) (holding appellant’s
consecutive ninety-nine-year prison sentences for continuous sexual abuse did not
constitute cruel and unusual punishment). We overrule Powell’s sole issue.
III. CONCLUSION
We affirm the trial court’s judgment.
CLARISSA SILVA
Justice
Do not publish.
TEX. R. APP. P. 47.2 (b).
Delivered and filed on the
22nd day of June, 2023.
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