Patrick Adair A/K/A Patrick Wayne Adair v. the State of Texas ( 2023 )

NUMBERS 13-22-00386-CR, 13-22-00387-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
PATRICK ADAIR
A/K/A PATRICK WAYNE ADAIR, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 105th District Court
of Kleberg County, Texas.
OPINION
Before Chief Justice Contreras and Justices Benavides and Longoria
Opinion by Justice Benavides
Following the revocation of his deferred adjudication community supervision in two
separate cases, the trial court adjudicated appellant Patrick Adair a/k/a Patrick Wayne
Adair guilty of continuous family violence, a third-degree felony, and bail jumping, a third-
degree felony enhanced to the punishment range of a second-degree felony. See TEX.
PENAL CODE ANN. §§ 25.11(a), (e); 38.10(a), (e); 12.42(a). The trial court sentenced him
to concurrent twelve-year terms of imprisonment.
In one issue, Adair contends that both sentences are grossly disproportionate to
the crimes he committed, thereby violating the Eighth Amendment’s prohibition against
cruel and unusual punishment. See U.S. CONST. amend. VIII. The State acknowledges
that Adair’s conviction for continuous family violence is void because his twelve-year
sentence exceeds the punishment range for a third-degree felony, which is “not more
than 10 years or less than 2 years.” See TEX. PENAL CODE ANN. § 12.34(a). We affirm the
conviction for bail jumping, reverse the sentence for continuous family violence, and
remand that matter for a new hearing on punishment.
I. BACKGROUND
In trial court cause number 18-CFR-0125, which is considered in appellate cause
number 13-22-00386-CR, the indictment alleged that, on or about May 6, 2018, Adair
intentionally, knowingly, or recklessly caused bodily injury to his girlfriend by “slapping her
on the head” and that he had a prior conviction from 2012 for “Assault-Family Violence
by Impeding Breath.”1 The indictment also alleged that Adair was a repeat felony offender
1 We note that the indictment does not allege facts sufficient to establish continuous family
violence, which requires two or more incidents of assault against a family member “during a period that is
12 months or less in duration.” See TEX. PENAL CODE ANN. § 25.11(a). The prior assault alleged in the
indictment occurred more than five years before the latter assault. Instead, based on the facts alleged,
Adair should have been charged with an enhanced assault under penal code § 22.01(b)(2)(A), which is
also a third-degree felony. See id. § 22.01(b)(2)(A) (stating that assault against a romantic partner with a
prior conviction for assaulting a family member is a third-degree felony). Nevertheless, the defect was not
jurisdictional, and Adair waived any challenge to the indictment by failing to object to it. See TEX. CODE
CRIM. PROC. ANN. art. 1.14(b); Teal v. State, 230 S.W.3d 172, 177 (Tex. Crim. App. 2007) (“Texas law now
requires the defendant to object to any error in the indictment before the day of trial and certainly before
the jury is empaneled.”).
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based on a 2009 conviction for possession of cocaine.
In trial court cause number 18-CFR-0406, which is considered in appellate cause
number 13-22-00387-CR, the indictment alleged that, on or about November 16, 2018,
Adair “intentionally and knowingly fail[ed] to appear in accordance with terms of his
release, namely the bond dated MAY 7, 2018[,] for PATRICK WAYNE ADAIR from
Kleberg County Pre-trial Services on the Charge of Continuous Family Violence.” This
indictment also alleged that Adair was a repeat felony offender based on a 2012
conviction for assault by impeding breath.
On May 13, 2019, Adair and the State entered into plea agreements for each case:
Adair would plead guilty, and the State would recommend deferred adjudication
community supervision for a period of eight years. In the bail jumping case, the plea
agreement matched the offense charged in the indictment, including the enhancement.
However, in the continuous family violence case, the plea agreement did not include the
indicted enhancement, and thus, Adair only pleaded guilty to the unenhanced offense, a
third-degree felony. 2 The trial court accepted the pleas, followed the State’s
recommendations, and entered orders of deferred adjudication community supervision
for eight years.
The State subsequently moved to revoke Adair’s community supervision and
adjudicate him guilty, alleging various violations of the terms of his supervision in each
case. Adair pleaded true to the allegations in the State’s motions, and the trial court
2 It appears from the plea agreement that this deviation was not inadvertent but rather a negotiated
term. The plea agreement originally included language indicating that Adair had been indicted with a “2nd”
degree felony as an “RFO,” but this language was subsequently crossed out and replaced with “3rd” degree
felony.
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accepted the pleas and found them true. The trial court, following a recommendation
agreed to by Adair and the State, revoked Adair’s probation, adjudicated him guilty, and
assessed punishment at concurrent twelve-year sentences of confinement.3
On August 17, 2022, twenty-one days after the judgments of conviction were
signed, the trial court received a pro se letter from Adair indicating he wished to appeal
his convictions based on “the severity of [his] sentencing.” The trial court treated his letter
as a notice of appeal and appointed him appellate counsel that same day. This appeal
ensued.
II. WAIVER
As a threshold matter, the State argues that Adair waived his Eighth Amendment
challenge. To preserve error for appellate review, the complaining party must present a
timely and specific objection to the trial court and obtain a ruling. See TEX. R. APP. P.
33.1(a). “A party is not excused from the procedural requirements for objecting at trial
merely because an error involves a constitutional right.” Jimenez v. State, 32 S.W.3d 233,
235 (Tex. Crim. App. 2000). A defendant who fails to specifically object to a sentence as
grossly disproportionate in the trial court, either at the time of sentencing or in a timely
post-trial motion, forfeits the alleged error on appeal. Noland v. State, 264 S.W.3d 144,
151 (Tex. App.—Houston [1st Dist.] 2007, pet. ref’d) (“[I]n order to preserve for appellate
review a complaint that a sentence is grossly disproportionate, constituting cruel and
unusual punishment, a defendant must present to the trial court a timely request,
3 At one point in the proceeding, the trial court asked, “Both of them are RFO?” The State
responded, “Yes, sir.” It appears that in reaching their agreed recommendation, both the State and Adair’s
trial counsel were operating under the mistaken belief that Adair had pleaded guilty to the enhanced
continuous family violence offense as charged in the indictment.
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objection, or motion stating the specific grounds for the ruling desired.”); see Curry v.
State, 910 S.W.3d 490, 497 (Tex. Crim. App. 1995) (holding defendant waived complaint
concerning cruel and unusual punishment).
Here, Adair wrote a pro se letter to the trial court, which he described as a “request
of appeal in regard to the severity of [his] sentencing.” The trial court construed this as a
notice of appeal and appointed new counsel to represent him on appeal. See TEX. R. APP.
P. 25.2. Although Adair’s newly appointed appellate counsel promptly filed requests for
the clerk’s and reporter’s record in each case, he failed to file a motion for new trial asking
the trial court to reconsider Adair’s sentences on Eighth Amendment grounds. Therefore,
the question before us is whether Adair’s pro se letter can be construed as both a notice
of appeal and a motion for new trial.
In Lundgren v. State, the Texas Court of Criminal Appeals was asked to determine
whether the defendant’s express waiver of his right to appeal also constituted a waiver of
his right to file a motion for new trial. 434 S.W.3d 594, 599 (Tex. Crim. App. 2014). The
Court acknowledged that “the word ‘appeal’ could be used colloquially to refer to a motion
for new trial or a notice of appeal in the sense that both procedural mechanisms serve a
review function.” Id. at 600. However, the Court determined that a motion for new trial is
“sufficiently different” from an appeal because “when a motion for new trial is filed, the
trial court has the opportunity to reconsider the proceedings and to correct any errors it
may agree occurred in the defendant’s trial by setting aside the defendant’s finding or
verdict of guilt or sentencing.” Id. at 599–600. An appeal, on the other hand, “is an
opportunity for a defendant to argue to a different tribunal that his conviction was flawed
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despite the trial judge’s or jury’s conclusion to the contrary.” Id. Based on these
differences, among others, the Court found that the defendant had not waived his right to
file a motion for new trial. Id. at 600.
The lesson we take from Lundgren is that a notice of appeal is substantively and
procedurally distinct from a motion for new trial. In other words, a filing that is merely a
notice of appeal cannot double as a motion for new trial. That is especially true in the
context of determining whether an alleged error has been preserved for appeal, because
the purpose of the preservation rule is to ensure that the trial court has the opportunity to
correct the error in the first instance. See Martinez v. State, 22 S.W.3d 504, 507 (Tex.
Crim. App. 2000). Here, Adair’s letter to the trial court sufficiently invoked our jurisdiction
as a notice of appeal because Adair expressed his desire to appeal the length of his
sentences. See TEX. R. APP. P. 25.2(c). However, even liberally construing the letter, we
cannot say that Adair also clearly asked the trial court to reconsider its decision on
sentencing. See Pena v. State, 285 S.W.3d 459, 464 (Tex. Crim. App. 2009) (“To avoid
forfeiting a complaint on appeal, the party must ‘let the trial judge know what he wants,
why he thinks he is entitled to it, and to do so clearly enough for the judge to understand
him at a time when the judge is in the proper position to do something about it.’” (quoting
Lankston v. State, 827 S.W.2d 907, 909 (Tex. Crim. App. 1992))). Accordingly, because
Adair failed to preserve this alleged error at the time of sentencing or in a timely post-trial
motion, his issue is overruled.4 See TEX. R. APP. P. 33.1(a); Noland, 264 S.W.3d at 151.
4 Even if Adair had preserved this issue, the record does not support an inference that his twelve-
year sentence for bail jumping, a third-degree felony enhanced to the punishment range of a second-degree
felony, was grossly disproportionate to the crime. See 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
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III. VOIDNESS
Nevertheless, the State observes, and we agree, that Adair’s sentence for
continuous family violence is void because it exceeds the maximum punishment for the
offense. See Mizell v. State, 119 S.W.3d 804, 806 (Tex. Crim. App. 2003) (“A sentence
that is outside the maximum or minimum range of punishment is unauthorized by law and
therefore illegal.”). Continuous family violence is a third-degree felony with a maximum
punishment of ten years imprisonment; therefore, Adair’s sentence of twelve years
imprisonment for that offense was “illegal.” See TEX. PENAL CODE ANN. §§ 38.10(a), (e),
12.34(a); Mizell, 119 S.W.3d at 806.
Unlike a challenge to a sentence as grossly disproportionate, a defendant has “an
absolute and nonwaiv[]able right to be sentenced within the proper range of punishment
established by the Legislature.” Speth v. State, 6 S.W.3d 530, 532–33 (Tex. Crim. App.
1999); Mizell, 119 S.W.3d at 806 n.6 (“Unlike most trial errors which are forfeited if not
timely asserted, a party is not required to make a contemporaneous objection to the
imposition of an illegal sentence.”). Further, even though Adair does not raise this issue
in his appeal, “any court—trial or appellate—may notice, on its own, an illegal sentence
and rectify that error.” Mizell, 119 S.W.3d at 805. However, “[w]hen faced with a void
sentence, we are without authority to reform it.” Lombardo v. State, 524 S.W.3d 808, 817
(Tex. App.—Houston [14th Dist.] 2017, no pet.). Instead, the trial court must conduct a
new hearing on punishment and assess a punishment within the statutorily prescribed
punishment range. See id.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.”).
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IV. CONCLUSION
We affirm appellant’s conviction for bail jumping. We reverse appellant’s sentence
for continuous family violence and remand that case for a new hearing on punishment.
GINA M. BENAVIDES
Justice
Publish.
TEX. R. APP. P. 47.2(b).
Delivered and filed on the
29th day of June, 2023.
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