                                     In The
                                Court of Appeals
                       Seventh District of Texas at Amarillo
                                ________________________

                                     No. 07-18-00049-CR
                                 ________________________


                          MICHAEL LOUIS VALLES, APPELLANT

                                                V.

                             THE STATE OF TEXAS, APPELLEE



                            On Appeal from the 100th District Court
                                  Collingsworth County, Texas
                    Trial Court No. 3009; Honorable Stuart Messer, Presiding


                                       November 29, 2018

                   MEMORANDUM OPINION ON REHEARING
                      Before QUINN, C.J., and PIRTLE and PARKER, JJ.


       On October 11, 2018, this court issued a Memorandum Opinion and Judgment

reforming the judgment of the trial court and affirming Appellant’s conviction as reformed. 1

The State has filed a Motion for Rehearing pointing out an error in our reformation

concerning the double enhancement of Appellant’s potential range of punishment.

Remaining convinced of the ultimate disposition of this matter, including, in part, our


       1 Valles v. State, No. 07-18-00049-CR, 2018 Tex. App. LEXIS 8351 (Tex. App.—Amarillo Oct. 11,
2018, no pet. h.) (mem. op., not designated for publication).
reformation of the trial court’s judgment, we grant the motion for rehearing, withdraw our

prior opinion and judgment, and issue the following opinion in its place.


        In October 2017, pursuant to a plea bargain, Appellant, Michael Louis Valles, was

granted deferred adjudication community supervision for ten years for arson,2 enhanced

by two prior felonies.3 He was also assessed a $500 fine. Just two months later, the

State moved to proceed with adjudication based on multiple violations by Appellant of the

conditions of community supervision.


        At the hearing on the State’s motion, the State waived numerous allegations on

the record and proceeded with only two, to-wit: (1) aggravated assault against a peace

officer and (2) consumption of alcohol and methamphetamine. Appellant plead “not true”

to both allegations and the hearing continued. At the conclusion of the hearing, the trial

court found both allegations to be true, convicted Appellant of the offense of arson, and

sentenced him to life in prison.


        Appellant presents two issues on appeal. First, he concedes the trial court did not

abuse its discretion in finding that he violated at least one condition of his community

supervision. However, by his second issue, he maintains that imposition of a life sentence

is disproportionate to the gravity of the offense. We reform the judgment to delete the

fine imposed and, as reformed, affirm.




        2TEX. PENAL CODE ANN. § 28.02(a)(2)(A) (West 2011). The offense is a second degree felony,
except that the offense is a first degree felony if it is shown that the property intended to be damaged or
destroyed by the actor was a habitation. § 28.02(d)(2).

        3 TEX. PENAL CODE ANN. § 12.42(d) (West Supp. 2018). As enhanced the offense was punishable

by imprisonment in the Texas Department of Criminal Justice for life, or for any term of not more than 99
years or less than 25 years.
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       BACKGROUND

       Appellant has an extensive criminal background dating back to 1996. He served

time in the penitentiary until his release in 2016. In July 2017, he was arrested for arson

for what he claims was merely popping fireworks. But the indictment alleged that he

attempted to burn down his brother’s house by starting a fire or causing an explosion by

shooting fireworks into the habitation with the knowledge that the habitation was within

the city limits. He was granted deferred adjudication community supervision and agreed

to abide by the terms thereof. In less than two months, he allegedly violated some of the

conditions of community supervision which resulted in the State’s decision to proceed to

adjudication.


       Given Appellant’s concession that the evidence supports adjudication on the arson

charge and revocation of community supervision, we focus our analysis solely on

Appellant’s argument that his life sentence is grossly disproportionate to the offense.


       PUNISHMENT

       A sentence within the statutory range of punishment is generally not considered

cruel, unusual, or excessive. Winchester v. State, 246 S.W.3d 386, 388 (Tex. App.—

Amarillo 2008, pet. ref’d). That said, Texas courts recognize that a prohibition against

disproportionate sentences survives under the federal constitution apart from any

consideration whether the punishment assessed is within the statute’s range. Id.


       In Solem v. Helm, 463 U.S. 277, 292, 103 S. Ct. 3001, 77 L. Ed. 2d 637 (1983),

the Court developed a three-factor test to determine whether a sentence was

disproportionate to the offense. Those factors are: (1) the gravity of the offense and the

harshness of the penalty; (2) the sentences imposed on other criminals in the same

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jurisdiction; and (3) the sentences imposed for commission of the same crime in other

jurisdictions. Eight years later, in Harmelin v. Michigan, 501 U.S. 957, 111 S. Ct. 2680,

115 L. Ed. 2d 836 (1991), the Court revisited Solem and rejected its proportionality

guarantee determining that the Eighth Amendment contained no such guarantee.


       Following the Harmelin decision, the Fifth Circuit Court of Appeals concluded that

disproportionality survived but Solem did not. McGruder v. Puckett, 954 F.2d 313, 316

(5th Cir. 1992), cert. denied, 506 U.S. 849, 113 S. Ct. 146, 121 L. Ed. 2d 98 (1992). The

Court adopted a modified Solem test requiring a reviewing court to first conduct a

threshold comparison of the gravity of the offense underlying the current conviction as

well as the offenses underlying the prior convictions against the severity of the sentence.

Only if the reviewing court infers the sentence is grossly disproportionate to the offenses

should the court then consider the remaining criteria in the Solem test. Id.


       Accordingly, we turn to the gravity of Appellant’s offenses. He was sentenced for

the offense of arson, where it was shown that the property intended to be damaged or

destroyed by Appellant was a habitation. As such, the offense was punishable as a first

degree felony with a potential range of punishment of confinement for life or for any term

of not more than 99 years or less than 5 years. TEX. PENAL CODE ANN. § 12.32(a) (West

2011). In addition to imprisonment, an individual adjudged guilty of a felony of the first

degree may be punished by a fine not to exceed $10,000. § 12.32(b).


       Furthermore, the trial court found that Appellant had previously been convicted of

two prior felony offenses, with the second previous felony conviction being for an offense

that occurred subsequent to the first previous conviction having become final. As such,

the offense was potentially punishable by imprisonment in the Texas Department of

                                            4
Criminal Justice for life, or for any term of not more than 99 years or less than 25 years.

§ 12.42(d) (West Supp. 2018).     In addition to the enhanced range of punishment, a trial

court may consider the defendant’s prior convictions in assessing an appropriate

sentence under article 37.07 of the Texas Code of Criminal Procedure. See TEX. CODE

CRIM. PROC. ANN. art. 37.07, § 3(a)(1) (West Supp. 2018).


       This court has found that imposition of a life sentence under section 12.42(d) for a

double-enhanced repeat offender does not constitute cruel and unusual punishment.

Winchester, 246 S.W.3d at 391 (citing Rummel v. Estelle, 445 U.S. 263, 284-85, 100 S.

Ct. 1133, 63 L. Ed. 2d 382 (1980)). In such circumstances, an 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.” Hicks v. State, 15 S.W.3d 626, 632 (Tex. App.—Houston

[14th Dist.] 2000 pet. ref’d). In reviewing whether an appellant’s sentence is “grossly

disproportionate,” we consider not only the present offenses but also an appellant’s

criminal history. Winchester, 246 S.W.3d at 390.


       ANALYSIS

       In addition to the arson charge for which Appellant was convicted, the trial court

also heard evidence concerning a 1997 aggravated assault conviction (a second degree

felony); § 22.02(b) (West 2011), and a 2011 kidnapping conviction (a third degree felony);

§ 20.03(c) (West 2011). In support of his disproportionality argument, Appellant asserts

there was no evidence he started a fire or that an explosion occurred, and no one was

harmed. In making this argument, Appellant overlooks his signed Stipulation of Evidence

to the arson charge, in which he judicially confessed that the facts of the arson charge

were true and correct. See Palacios v. State, 942 S.W.2d 748, 750 (Tex. App.—Houston
                                             5
[14th Dist.] 1997, pet. ref’d) (holding that a stipulation of evidence filed and approved by

the trial court and relied upon in accepting a guilty plea constitutes sufficient evidence to

sustain the plea).


       Additionally, several witnesses from the 100th District Community Supervision and

Corrections Department testified to Appellant’s criminal history in Texas as well as in

Kansas and in Oklahoma. During cross-examination, Appellant was asked about his

criminal history. He confirmed that on September 9, 1996, he had his first criminal charge

for driving while intoxicated; February 23, 1997—an arrest for aggravated assault with a

deadly weapon; July 31, 1997—an arrest in Oklahoma for felony burglary; September 15,

1997—an arrest for aggravated assault with a deadly weapon; and August 3, 1998—an

arrest for failure to identify as a fugitive.


       Appellant then served time in the penitentiary until 2008 and upon his release, his

criminal conduct continued. On July 7, 2008, he was arrested in Lubbock County but the

charge was dismissed. On March 6, 2010, he was arrested in Kansas for aggravated

battery and aggravated endangerment of a child, plus five or six other lesser charges.

Notwithstanding the fact that most of the charges were dismissed, he still served eighteen

months in prison.


       He served time in Texas until 2016, and on January 3, 2017, he was arrested in

Oklahoma for failure to appear on an assault and battery charge with a dangerous

weapon but was later exonerated. On February 20, 2017, he was arrested in Oklahoma

for larceny and Appellant testified that charge was eventually dismissed.           He was

incarcerated from March through June 2017. One month later, he was arrested for the

underlying arson charge.

                                                6
       One of the new offenses considered in revoking Appellant’s community

supervision was aggravated assault on a public servant. A Collingsworth County Sheriff’s

Deputy testified that while on patrol in full uniform and in a marked vehicle, he was

dispatched to a call. When he arrived, he recognized Appellant who then fled on foot.

The deputy again located him and testified that Appellant ran towards his vehicle and

threw a “fairly good-sized rock” at him that caused a dent in the hood of his vehicle.


       Regarding sentencing, the State argued for a life sentence because Appellant has

“been a burden on every community he’s lived in for the last 22 years.” The evidence

showed a criminal history dating back to 1996, including legal problems in Kansas and

Oklahoma. Some of those offenses involved deadly weapons. Appellant asked for

another chance at community supervision and an opportunity for a rehabilitation program

for his drug addiction. In pronouncing sentence, the trial court observed that Appellant

had not made any effort to abide by the laws of the State and had violated the conditions

of his community supervision shortly after they were imposed.


       We conclude that based on the evidence presented, the life sentence imposed by

the trial court is not grossly disproportionate to the gravity of the double-enhanced arson

offense of which he was convicted. Appellant’s second issue is overruled.


       REFORMATION OF JUDGMENT

       This court has the power to modify the judgment of the court below to make the

record speak the truth when we have the necessary information to do so. See Ramirez

v. State, 336 S.W.3d 846, 852 (Tex. App.—Amarillo 2011, pet. ref'd) (citing Bigley v.

State, 865 S.W.2d 26, 27-28 (Tex. Crim. App. 1993)). See also Cobb v. State, 95 S.W.3d

664, 668 (Tex. App.—Houston [1st Dist.] 2002, no pet.).

                                             7
      Here, despite the fact that the trial court’s pronouncement of sentence did not

include a fine, the Judgment Adjudicating Guilt reflects a fine of $500. An offense

punishable under section 12.42(d) does not carry with it the potential for the assessment

of a fine. TEX. PENAL CODE ANN. § 12.42(d) (West Supp. 2018). Furthermore, because a

fine is punishment; Weir v. State, 278 S.W.3d 364, 366 (Tex. Crim. App. 2009), it must

be contained in the trial court’s oral pronouncement of sentence in order to be included

in the written judgment.


      Thus, the Judgment Adjudicating Guilt should be reformed to delete the

assessment of a fine. The trial court is ordered to enter a Judgment Nunc Pro Tunc to

reflect this reformation and the trial court clerk is directed to provide the corrected

judgment to the Institutional Division of the Texas Department of Criminal Justice.


      CONCLUSION

      As reformed, the trial court’s judgment is affirmed.




                                                       Patrick A. Pirtle
                                                            Justice




Do not publish.




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