                                   In The
                              Court of Appeals
                     Seventh District of Texas at Amarillo

                                    No. 07-17-00088-CR


     KENNETH LOUIS HUTTO A/K/A KENNETH LEWIS HUTTO, APPELLANT

                                            V.

                          THE STATE OF TEXAS, APPELLEE

                          On Appeal from the 100th District Court
                                   Carson County, Texas
                  Trial Court No. 5393, Honorable Stuart Messer, Presiding

                                    October 11, 2018

                              MEMORANDUM OPINION
                  Before QUINN, C.J., and CAMPBELL and PARKER, JJ.


      Appellant Kenneth Louis Hutto a/k/a Kenneth Lewis Hutto appeals from the trial

court’s order adjudicating him guilty of the offense of possession of a controlled

substance,1 revoking his deferred adjudication community supervision and sentencing

him to a term of eighteen years of imprisonment. Appellant challenges the order through

two issues. We will affirm.




      1   TEX. HEALTH & SAFETY CODE ANN. § 481.115 (West 2017).
                                        Background


       In November 2013, appellant pled guilty to possession of a controlled substance,

enhanced by a previous felony conviction. The written plea admonishments stated he

was subject to the range of punishment for a first-degree felony. Appellant was placed

on deferred adjudication community supervision for a period of eight years.              His

community supervision was subject to certain terms and conditions. The order of deferred

adjudication stated appellant’s offense was a first-degree felony offense.


       In August 2016, the State filed a motion to adjudicate appellant’s guilt, alleging

appellant violated several of the terms of his community supervision. The court held a

hearing on the motion in March 2017. At the outset of that hearing, the trial court

admonished appellant that if it found appellant violated even one of the State’s

allegations, appellant would be subject to the full range of punishment for a first-degree

felony offense of up to 99 years or life in prison and up to a $10,000 fine. Appellant

indicated he understood the allegations against him and the possible punishment range.

After the allegations were read in open court, the trial court again confirmed with appellant

that he understood he was subject to the full range of punishment for a first-degree felony

offense. Appellant then pled “true” to each of the alleged violations read in open court.2


       During a recess from the hearing, the parties determined that the 2003 conviction

used to enhance the punishment range of appellant’s offense to that of a first-degree

felony was in fact a state-jail felony rather than a third-degree felony. Therefore, his

original 2013 plea should have referred to a second-degree felony rather than a first-



       2   The parties agreed to waive several other allegations.

                                              2
degree. TEX. PENAL CODE ANN. § 12.42(b) (West 2018). The trial court then asked

whether its admonishment to appellant as to the applicable punishment range for a first-

degree felony affected the voluntariness of his plea. The State argued that it did not, and

that the corrected punishment range was actually beneficial to appellant. The court

agreed, and counsel for appellant also agreed. Counsel then requested that appellant be

sentenced to attend a program in a substance abuse facility, particularly in light of the fact

the offense was punishable as a second-degree felony rather than a first-degree.


       Counsel spoke with appellant and the court then addressed appellant to explain

the change from the first-degree to the second-degree punishment range. The court said,

“[a]fter your testimony, a little further checking was done, and the enhancement provision

that was part of the Case Number 5393 was not a good enhancement provision, which

means that you would be subject, at this time, up to 20 years with a minimum of two and,

again, a fine not to exceed $10,000. Do you understand that, sir?” Appellant answered,

“Yes, sir, I do.” The hearing proceeded, and the court adjudicated appellant guilty and

sentenced him to serve a term of eighteen years of imprisonment.


       Thereafter, appellant filed a motion for new trial that was overruled by operation of

law. This appeal followed.


                                          Analysis


Admonishment of Punishment Range


       In the first of his two issues, appellant contends the trial court committed reversible

error by abusing its discretion when it incorrectly admonished him at the outset of the

adjudication hearing.    In his argument supporting his first issue, appellant makes

                                              3
reference to the requirement of article 26.13(a) of the Code of Criminal Procedure that,

prior to accepting a plea of guilty, a trial court shall admonish the defendant of the range

of punishment attached to the offense. TEX. CODE CRIM. PROC. ANN. art. 26.13 (West

2017). He cites also case law regarding the determination of the voluntariness of a plea

of guilty.3 Although appellant does not expressly contend his original 2013 guilty plea

was tainted by the admonishment, now known to have been incorrect, that he was subject

to the punishment range for a first-degree felony, we note that we would have no

jurisdiction at this stage of the proceedings to review a contention his original plea was

rendered involuntary because of the improper punishment-range admonition.               See

Manuel v. State, 994 S.W.2d 658, 661-62 (Tex. Crim. App. 1999) (appellant cannot, in

appeal of his adjudication of guilt, raise issues concerning his conviction that could have

been raised when his deferred adjudication was first imposed); Jordan v. State, 54

S.W.3d 783 (Tex. Crim. App. 2001) (applying rule to involuntary plea claim).


       And, for another reason, we find we may not review the complaint appellant

expressly now raises, that is, that he pled “true” to the State’s allegations he violated the

terms of his community supervision without a correct understanding of the range of

punishment. He points out his plea of “true” was entered before the trial court advised

him of the correct, and lower, second-degree felony punishment range the court actually

applied to his sentencing. The record makes clear appellant was made well aware of the

inaccuracy of the earlier first-degree admonishment, at a point at which appellant could

have raised any objection he had to his pleas of “true” to the State’s allegations. If

appellant desired to reconsider his pleas, understanding the lesser range he was facing,


       3   Appellant cites Brady v. United States, 397 U.S. 742 (1970).

                                              4
the procedure the trial court employed gave him opportunity to say so.           The court

corrected the erroneous admonishment, inquired into the possibility of its effect on the

voluntariness of the plea, and properly admonished appellant.


       The rules that govern our review of issues on appeal provide that, as a prerequisite

to presenting a complaint for appellate review, the record must show that the complaint

was made to the trial court by a timely request, objection or motion. See TEX. R. APP. P.

33.1; Mendez v. State, 138 S.W.3d 334, at *338-39 (Tex. Crim. App. 2004) (applying

rule). We agree with the State that the issue appellant now raises was not preserved for

our review. This case illustrates one of the reasons the law requires complaints raised

on appeal to be addressed in the trial court first. See Martinez v. State, 91 S.W.3d 331,

335-36 (Tex. Crim. App. 2002) (discussing error-preservation requirements).            Had

appellant made the trial court aware he wanted to reconsider his pleas of “true” after being

correctly admonished, the task readily could have been addressed in the courtroom,

saving the judicial system the burden of appeal and retrial. See id. at 336. Because he

did not do so, we may not address his complaint now. See Lanum v. State, 952 S.W.2d

36, 40 (Tex. App.—San Antonio 1997, no pet.) (finding defendant forfeited appellate

review when he made no request to withdraw his plea at the time of the revocation hearing

or in his motion for new trial).


       We resolve appellant’s first issue against him.


Sentence


       In appellant’s second issue, he asserts the trial court committed reversible error

when it sentenced him to eighteen years of imprisonment, a term at the top of the


                                             5
applicable punishment range and one appellant argues is excessive and grossly

disproportionate to his crime.


       “[T]he Eighth Amendment has been read to preclude a sentence that is greatly

disproportionate to the offense, because such sentences are cruel and unusual.”

Hernandez v. State, No. 07-13-00006-CR, 2014 Tex. App. LEXIS 9347, at *4 (Tex. App.—

Amarillo Aug. 21, 2014, no pet.) (mem. op., not designated for publication) (citing

McGruder v. Puckett, 954 F.2d 313, 315 (5th Cir. 1992) (internal quotation marks

omitted)). Accordingly, even a sentence within the statutorily prescribed range may

violate the Eighth Amendment. Id. The Eighth Amendment proportionality analysis

begins with an objective comparison of the gravity of the offense with the severity of the

sentence. Id. (citations omitted). Only if we are able to infer that the sentence is grossly

disproportionate to the offense will we consider the two remaining factors of the applicable

analysis.   Id. (citations omitted).   The “Eighth Amendment does not require strict

proportionality between the crime and the sentence; rather, it forbids extreme sentences

that are ‘grossly disproportionate’ to the crime.” Id. (citing Ewing v. California, 538 U.S.

11, 23 (2003)). The “precise contours of the ‘grossly disproportionate’ standard are

unclear, but it applies in only ‘exceedingly rare’ and ‘extreme’ cases.”         Id. (citation

omitted). “The gross disproportionality principle reserves a constitutional violation for only

the extraordinary case.” Id. (citation omitted).


       In his brief, appellant argues that while he does have a history of criminal offenses,

his history should not be the basis used to determine the sentence for the underlying

crime. Rather, he argues, the court should base its sentence on the commission of the

2013 offense, not on appellant’s commission of crimes dating back to 1997. Appellant

                                              6
also argues the court should evaluate the seriousness of the crime as compared to other

crimes. He contends that while his current charge, a second-degree possession of

controlled substance offense, is indeed serious, it is not as serious as one such as

“aggravated assault or reckless injury to a child which would warrant a higher range of

punishment.”


          We cannot accept the argument. In comparing the gravity of the offense with the

severity of the imposed sentence, Texas courts have found a “repeat offender’s sentence

is based not merely on that person’s most recent offense but also on the propensities he

has demonstrated over a period of time during which he has been convicted of and

sentenced for other crimes.” Winchester v. State, 246 S.W.3d 386, 390 (Tex. App.—

Amarillo 2008, pet. ref’d) (citing Hicks v. State, 15 S.W.3d 626, 632 (Tex. App.—Houston

[14th Dist.] 2000, pet. ref’d)). Therefore, considering whether appellant’s sentence is

“grossly disproportionate,” we consider not only the present offense but his criminal

history also. Id. (citing Vrba v. State, 69 S.W.3d 713, 724 (Tex. App.—Waco 2002, no

pet.)).


          Appellant’s assertions on appeal do not demonstrate that his sentence is grossly

disproportionate to his offense.     In addition to his initial possession of a controlled

substance for which he pled guilty, the record shows appellant violated several conditions

of his community supervision. Those violations included two arrests for new offenses and

a number of instances of use of controlled substances. The trial court noted that it was

basing its punishment on his initial crime as well as appellant’s continued commission of

crimes while on probation and his refusal of drug treatment while on probation. Because

we do not find the crime was disproportionate to the sentence, we need not address the

                                              7
remaining factors, nor conduct the comparison of appellant’s offense with others as

appellant urges.


       We do not find the imposition of an eighteen-year sentence excessive for

appellant’s possession of a controlled substance offense.      We overrule appellant’s

second issue.


                                      Conclusion


       Having resolved each of appellant’s issues against him, we affirm the judgment of

the trial court.



                                                      James T. Campbell
                                                         Justice


Do not publish.




                                           8
