AFFIRMED and Opinion Filed June 27, 2019




                                          Court of Appeals
                                                          S     In The


                                   Fifth District of Texas at Dallas
                                                      No. 05-18-00821-CR

                                          JESTINE ABRAHAM, Appellant
                                                      V.
                                          THE STATE OF TEXAS, Appellee

                               On Appeal from the 195th Judicial District Court
                                            Dallas County, Texas
                                    Trial Court Cause No. F-1840107-N

                                         MEMORANDUM OPINION
                                     Before Justices Bridges, Brown, and Nowell
                                             Opinion by Justice Bridges
          Appellant Jestine Abraham pleaded guilty to stalking his ex-wife, and the trial court

sentenced him to five years’ confinement. In two issues, Abraham argues the trial court denied

him his common law right to allocution and imposed a grossly disproportionate punishment in

violation of the Eighth Amendment. We affirm.

                                                            Background

          Abraham and Wife divorced in September 2017 after twenty-two years of an arranged

Indian marriage. They had a daughter and son.1

          Wife lived the entire marriage in fear and suffered physical and mental abuse. In 2001, she

called police after Abraham chased the children around the street threatening to harm them. She


   1
       At the time of Abraham’s guilty plea and punishment hearing, Daughter was twenty-one and Son was sixteen.
obtained an emergency protective order that was valid for three months against him, but he did not

abide by it. He followed her, sent threatening text messages, and left repeated voicemails. She

often saw him waiting outside their home. He begged her for another chance, and she agreed.

Unfortunately, Abraham did not change, but continued his abusive behavior.

       In May 2017, he acted aggressively towards Wife when she tried to leave the house. He

grabbed her hair and threatened to kill her with a knife. She had previously hidden the knives so

he could not find one to carry out his threat. She contacted her parents, and they intervened to

calm Abraham down. She did not call police because she feared retaliation.

       In June 2017, Abraham left a threatening voicemail. He said he did not care about going

to jail if anything happened to her. In July, she obtained another protective order that lasted for

two years.

       Abraham violated the second protective order in September. On September 11, 2017, he

parked his car in their driveway while he talked to a neighbor. His car blocked Wife from leaving

for work. Abraham was arrested, but continued contacting Wife from jail through letters. Once

released, he left threatening messages and in one, described how he could kill her in such a way

that no one would ever know what happened to her.

       On December 20, 2017, Wife’s van was vandalized and all the windows were broken out.

Abraham left a voicemail on Daughter’s cell phone taking responsibility and claiming “that’s only

the beginning.” Wife and Children then moved out. About a week later, a neighbor called the

police when someone broke a house window. Wife believed it was Abraham “because there’s no

one else who can do that.”

       Abraham was arrested in January 2018 and continued to contact Wife through letters. On

June 29, 2018, the trial court conducted a hearing.




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       Wife testified she was afraid for her children because Abraham had physically and mentally

abused them. She explained Abraham was diagnosed with bipolar disorder about seven years ago,

but was “hit or miss” taking his medication because he denied having metal health problems. She

described him as two different people. He acted normal one moment and then become angry and

violent the next. She also described him as an aggressive alcoholic. She testified to one incident

in which he took kerosene and tried to burn down their home in India.

       Daughter testified and described physical abuse that began when she was five years old.

Abraham hit her with belts, tried to choke her, and tried to get a knife to hurt her but could not find

one. He told her he could easily kill her and have another child. She received psychotherapy

because of the constant worry about Mother’s health and safety.

       Son testified he witnessed Abraham’s abuse towards Mother for as long as he could

remember. Abraham had been physically abusive towards him in the past but not recently. He

also received letters from Abraham from jail.

       Abraham testified he would stay away from his family and take his medication if given

probation. He claimed he and Wife had a happy marriage until her parents got involved and wanted

them to move next door to Wife’s brother. He said Wife’s brother was the aggressive one. He

claimed Daughter gave false testimony to police causing his arrest. He also said he never harmed

or killed anyone, abided by the rules, and was very religious.

       The trial court accepted Abraham’s guilty plea and sentenced him to five years’ in prison.

This appeal followed.

                               Common Law Right To Allocution

       In his first issue, Abraham complains the trial court denied him the common law right to

allocution. As a prerequisite to presenting a complaint for appellate review, the record must show

that the specific complaint was made to the trial court. See TEX. R. APP. P. 33.1(a). Any right of

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allocution must be preserved by making a timely and specific objection in the trial court and

obtaining a ruling. McClintick v. State, 508 S.W.2d 616, 618 (Tex. Crim. App. 1974) (op. on

reh’g) (concluding appellant failed to preserve his right to common law allocution by failing to

object prior to the trial court imposing sentence). Abraham did not object at trial on the ground he

was denied a common law right of allocution, and therefore, he failed to preserve error. See King

v. State, No. 05-18-00286-CR, 2019 WL 2283882, at *4 (Tex. App.—Dallas May 29, 2019, no

pet. h.) (mem. op., not designated for publication); Williams v. State, No. 05-16-01305-CR, 2018

WL 1373953, at *4 (Tex. App.—Dallas Mar. 19, 2018, no pet.) (mem. op., not designated for

publication). We overrule Abraham’s first issue.

       To the extent Abraham mentioned the “potential denial” of his common law right to

allocution in his motion for new trial, the argument was neither timely nor definitive to satisfy the

preservation requirements of rule 33.1. See Gallegos-Perez v. State, No. 05-16-00015-CR, 2016

WL 6519113, at *2 (Tex. App.—Dallas Nov. 1, 2016, no pet.) (mem. op., not designated for

publication) (“[T]o complain on appeal of the denial of a right to allocution, whether statutory or

one claimed under the common law, a defendant must timely object.”). Moreover, while “an

appellant may raise a sentencing issue in a motion for new trial for the first time” on appeal, he

may do so “only if the appellant did not have the opportunity to object in the punishment hearing.”

Burt v. State, 396 S.W.3d 574, 577 (Tex. Crim. App. 2013); Gale v. State, No. 05-17-00595-CR,

2018 WL 3434511, at *7 (Tex. App.—Dallas July 17, 2018, pet. ref’d) (mem. op., not designated

for publication). Abraham had the opportunity to object prior to sentencing and failed to do so.

We overrule his first issue.




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                                      Eighth Amendment

       In his second issue, Abraham argues his five-year sentence is a grossly disproportionate

punishment in violation of the Eighth Amendment’s prohibition against cruel and unusual

punishment. The State responds the record does not support an inference of disproportionality.

       The concept of proportionality is embodied in the United States Constitution’s ban on cruel

and unusual punishment and requires that punishment be graduated and proportioned to the

offense. U.S. CONST. amend VIII. But, this is a narrow principle that does not require strict

proportionality between the crime and the sentence. State v. Simpson, 488 S.W.3d 318, 322 (Tex.

Crim. App. 2016) (citing Harmelin v. Michigan, 501 U.S. 957, 1001 (1991) (Kennedy, J.,

concurring)). Rather, it forbids only extreme sentences that are “grossly disproportionate” to the

crime. Id. While the United States Supreme Court has acknowledged the lack of clarity in its

precedent regarding what factors may indicate gross disproportionality, it has nevertheless

emphasized that a sentence is grossly disproportionate to the crime only in the exceedingly rare or

extreme case. Id. at 323 (citing Lockyer v. Andrade, 538 U.S. 63, 73 (2003)). Moreover, the Texas

Court of Criminal Appeals has traditionally held that punishment assessed within the statutory

limits is not excessive, cruel, or unusual. See Ex parte Chavez, 213 S.W.3d 320, 323–24 (Tex.

Crim. App. 2006).

       To determine whether a sentence for a term of years is grossly disproportionate for a

particular defendant’s crime, a court must judge the severity of the sentence in light of the harm

caused or threatened to the victim, the culpability of the offender, and the offender’s prior

adjudicated and unadjudicated offenses. Simpson, 488 S.W.3d at 323 (citing Graham v. Florida,

560 U.S. 48, 60 (2010)). In the rare case in which this threshold comparison leads to an inference

of gross disproportionality, the court should then compare the defendant’s sentence with the

sentences received by other offenders in the same jurisdiction and with the sentences imposed for

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the same crime in other jurisdictions. Graham, 560 U.S. at 60. If this comparative analysis

validates an initial judgment that the sentence is grossly disproportionate, the sentence is cruel and

unusual. Id.

       Abraham argues his five-year sentence is grossly disproportionate to his crime because the

undisputed evidence shows that although he suffers from legitimate and serious mental health

issues, he has no prior convictions of any kind.

       Initially, we note punishment for a third-degree felony, which includes stalking, is two to

ten years. See TEX. PENAL CODE ANN. §§ 12.34(a), 42.072(b). Abraham’s five-year sentence falls

within the statutory range for the charged offense, and therefore, is presumptively neither cruel nor

unusual. We must, however, review whether his punishment is proportionate to the underlying

offense. Graham, 560 U.S. at 60.

       Although the record does not include any prior convictions, the record establishes Abraham

repeatedly ignored and violated protective orders issued against him. During these violations, he

threatened and sometimes acted violently towards Wife. He threatened to kill her in such a way

no one could find her. He grabbed her hair and threatened to kill her with a knife, but could not

find one. He damaged property on more than one occasion. He left Daughter a voicemail after

smashing out van windows admitting he did it and saying it was only the beginning. He continued

contacting Wife from jail by sending letters. He had previously threatened the children. All three

testified they feared what could happen if Abraham received probation. Abraham had disrupted

their lives to the point of Daughter needing psychotherapy, the family moving, and Son changing

schools. Son testified, “The past six months that he’s been in prison have been the most peaceful

that our family has had.”

       Despite Abraham’s bipolar diagnosis approximately eight years ago, he failed to regularly

take prescribed medication to improve his mental health. Moreover, Wife testified he denied

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having mental health issues. Regardless, Wife testified the physical and emotional abuse started

before his bipolar diagnosis. Thus, Abraham’s behavior and outbursts were common-place during

their twenty-two years of marriage and escalated as time passed. They were not isolated incidents

in which he missed a dose of medication and became violent. Instead, the record shows a man

who continued a pattern of physical and emotional abuse that culminated in stalking. Yet, he

believed he followed rules and had not harmed anyone. His testimony indicated a lack of

responsibility for his actions and a lack of understanding of how his harmful behavior scared and

impacted his family. He minimized his behavior and made excuses. Given these circumstances,

Abraham’s five-year sentence is not grossly disproportionate given his culpability and the harm

caused or threatened to Wife. Simpson, 488 S.W.3d at 323. As such, there is no need to compare

his sentences to sentences imposed on others. Id. Abraham’s second issue is overruled.

                                          Conclusion

       We affirm the trial court’s judgment.




                                                 /David L. Bridges/
                                                 DAVID L. BRIDGES
                                                 JUSTICE



Do Not Publish
TEX. R. AP. P. 47.1
180821F.U05




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                                      S
                             Court of Appeals
                      Fifth District of Texas at Dallas
                                     JUDGMENT

 JESTINE ABRAHAM, Appellant                       On Appeal from the 195th Judicial District
                                                  Court, Dallas County, Texas
 No. 05-18-00821-CR       V.                      Trial Court Cause No. F-1840107-N.
                                                  Opinion delivered by Justice Bridges.
 THE STATE OF TEXAS, Appellee                     Justices Brown and Nowell participating.

      Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.


Judgment entered June 27, 2019




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