                        COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                             NO. 02-17-00270-CR


RICKY ZANE JOHNSON                                                 APPELLANT

                                       V.

THE STATE OF TEXAS                                                      STATE

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          FROM THE 235TH DISTRICT COURT OF COOKE COUNTY
                    TRIAL COURT NO. CR16-00490

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                        MEMORANDUM OPINION1

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      Upon his guilty plea, a jury convicted appellant Ricky Zane Johnson of

burglary of a habitation, a second-degree felony.2    After hearing punishment

evidence, the jury assessed fifteen years’ confinement.      In two points, he

contends that the evidence is factually insufficient to support his sentence and


      1
      See Tex. R. App. P. 47.4.
      2
      See Tex. Penal Code Ann. § 30.02(a), (c)(2) (West Supp. 2017).
that the trial court erred by refusing to instruct the jury that his intoxication while

committing the burglary could mitigate his punishment. We affirm.

                                    Background

        A grand jury indicted Johnson with burglary. In front of a jury, he pleaded

guilty.3 The jury heard evidence that he committed burglary of a home that was

across the street from where he lived by breaking into a garage, opening the

door of a truck, finding a wallet, and taking credit cards and cash. Johnson

testified and conceded that he had prior convictions. He explained he had a drug

problem and that when he committed the burglary, he was on Xanax. Although

he claimed that he would not have committed the burglary without having taken

Xanax, he admitted that he knew that committing burglary was wrong at the time

he did so.

        Before closing arguments on the issue of Johnson’s punishment, his

counsel asked the court to submit a punishment-mitigation instruction in the jury

charge on “temporary insanity due to intoxication.”        The proposed instruction

read,

               You are instructed that under our law neither intoxication nor
        temporary insanity of mind caused by intoxication shall constitute
        any defense to the commission of a crime. Evidence of temporary
        insanity caused by intoxication should be considered in mitigation of
        the penalty, if any, attached to the offense.


        3
       A plea of guilty in front of a jury substitutes for a verdict of guilt, and the
case proceeds to a unitary punishment hearing. Fuller v. State, 253 S.W.3d 220,
227 (Tex. Crim. App. 2008), cert. denied, 555 U.S. 1105 (2009).


                                          2
            By the term “intoxication” as used herein is meant disturbance
      of mental or physical capacity resulting from the introduction of any
      substance into the body.

             By the term “insanity” as used herein is meant that as a result
      of intoxication the defendant did not know that his conduct was
      wrong.

             Now, if you find from the evidence that the defendant . . . was
      laboring under temporary insanity as defined in this charge,
      produced by voluntary intoxication, then you may take such
      temporary insanity into consideration in mitigation of the penalty
      which you attach to the crime, if you find him guilty.

The trial court denied Johnson’s request for the inclusion of the instruction.

      After receiving the parties’ closing arguments, the jury assessed Johnson’s

punishment at fifteen years’ confinement.         The trial court sentenced him

accordingly. He brought this appeal.

                       Johnson’s Sentencing Complaint

      In his first point, Johnson argues that the evidence was “factually

insufficient to sentence him to 15 years[’] confinement in the penitentiary.” He

recognizes that the sentencing range for his offense was two to twenty years’

confinement,4 but he argues that his actions were “not those that would merit 15

years[’] confinement,” a sentence that he describes as “onerous.”

      The jury’s decision of what punishment to impose within a statutory range

is a normative process that is not intrinsically factbound; thus, we do not review a

punishment decision for evidentiary sufficiency.       See Hayden v. State, 296



      4
       See Tex. Penal Code Ann. § 12.33(a) (West 2011).


                                         3
S.W.3d 549, 552 (Tex. Crim. App. 2009); Garcia v. State, 316 S.W.2d 734, 735

(Tex. Crim. App. 1958); Prado v. State, No. 07-16-00273-CR, 2016 WL 7187462,

at *3 (Tex. App.—Amarillo Dec. 8, 2016, no pet.) (mem. op., not designated for

publication).   To the extent that Johnson asks for an evidentiary sufficiency

review, we decline to undertake one.

      Broadly construing his brief, to the extent that Johnson intends to argue

that his sentence was disproportionate and violated his Eighth Amendment right

to be free from cruel and unusual punishment,5 he did not present that argument

in the trial court, and we therefore hold that he forfeited any such complaint. See

Tex. R. App. P. 33.1(a)(1)(A); Alkek v. State, No. 02-17-00304-CR, 2018 WL

1528275, at *3 (Tex. App.—Fort Worth Mar. 29, 2018, no pet.) (mem. op., not

designated for publication) (“We have held on numerous occasions that

disproportionate-sentence claims must be preserved at the trial court level.”);

Cisneros v. State, No. 02-06-00103-CR, 2007 WL 80002, at *1 (Tex. App.—Fort

Worth Jan. 11, 2007, pet. ref’d) (mem. op., not designated for publication)

(collecting cases).

      For these reasons, we overrule Johnson’s first point.


      5
       See U.S. Const. amend VIII; Emanuel v. State, No. 02-16-00376-CR,
2018 WL 2142769, at *5 (Tex. App.—Fort Worth May 10, 2018, pet. filed) (mem.
op., not designated for publication) (“Proportionality of punishment is embodied in
the Eighth Amendment’s ban on cruel and unusual punishment and requires that
the punishment fit the offense. Generally, punishment that is within the statutory
range is not excessive, cruel, or unusual under the Eighth Amendment and will
not be disturbed on appeal.” (citation omitted)).


                                        4
                           Alleged Jury Charge Error

      In his second point, Johnson contends that the trial court erred by refusing

his requested jury instruction on temporary insanity caused by intoxication. In

our review of a jury charge, we first determine whether error occurred; if error did

not occur, our analysis ends. Kirsch v. State, 357 S.W.3d 645, 649 (Tex. Crim.

App. 2012).

      Section 8.04 of the penal code states that voluntary intoxication does not

constitute a defense to a crime but that evidence of “temporary insanity caused

by intoxication may be introduced by the actor in mitigation of the penalty

attached to the offense.” Tex. Penal Code § 8.04(a)–(b) (West 2011). “Insanity”

means that at the time of the conduct charged, the actor did not know that his

conduct was wrong. Id. § 8.01(a) (West 2011).

      Considering these provisions together, the court of criminal appeals has

held that to be entitled to a mitigation instruction based on voluntary intoxication

causing temporary insanity, the defendant must show that he was “unable to

understand the wrongfulness of his conduct.” Ex parte Martinez, 195 S.W.3d

713, 722 (Tex. Crim. App. 2006) (“All of [the] evidence establishes that [the

defendant] was indeed aware of the wrongfulness of his conduct; thus, a

mitigation instruction would not have been supported by the evidence.”); Lopez v.

State, 544 S.W.3d 499, 504 (Tex. App.—Houston [14th Dist.] 2018, no pet.)

(stating that a voluntary intoxication instruction “is not warranted unless a




                                         5
defendant shows that his intoxication prevented him from understanding that his

conduct was wrong”).

      Here, regarding his commission of burglary, Johnson testified, “I can’t say

that I didn’t understand it was wrong, because that would be a lie.           I did

understand it was wrong. But before I knew it, I was just, I mean, I was kind of

over there doing it.”     Under the authority cited above, we hold that because

Johnson conceded that he knew while he was committing the burglary that doing

so was wrong, the trial court did not err by denying his request for an instruction

on involuntary intoxication causing temporary insanity.       See Martinez, 195

S.W.3d at 722; Lopez, 544 S.W.3d at 504. We overrule his second point.

                                    Conclusion

      Having overruled both of Johnson’s points, we affirm the trial court’s

judgment.

                                                   /s/ Wade Birdwell
                                                   WADE BIRDWELL
                                                   JUSTICE

PANEL: WALKER, GABRIEL, and BIRDWELL, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: July 26, 2018




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