                       COURT OF APPEALS
                        SECOND DISTRICT OF TEXAS
                             FORT WORTH

                            NO. 02-14-00213-CR
                            NO. 02-14-00214-CR
                            NO. 02-14-00215-CR


JOSEPH ALAN NEELEY                                               APPELLANT

                                      V.

THE STATE OF TEXAS                                                     STATE


                                   ----------

     FROM CRIMINAL DISTRICT COURT NO. 2 OF TARRANT COUNTY
         TRIAL COURT NOS. 1338837D, 1338838D, 1338699D

                                   ----------

                       MEMORANDUM OPINION 1

                                   ----------

      Appellant Joseph Alan Neeley appeals his sentences for aggravated

assault with a deadly weapon, burglary of a habitation, and possession of less




      1
      See Tex. R. App. P. 47.4.
than a gram of methamphetamine. 2          In his only point, he argues that the

sentences are grossly disproportionate to the facts of his offenses and are

therefore unconstitutional. We affirm.

                                Background Facts

      One Saturday in the summer of 2013, after eating lunch with her mother

and her sister, high school student D.L. (Danielle) 3 was driving on a one-way

access road to a highway. Appellant, driving the wrong way on the access road,

crashed with Danielle’s car. V.L. (Vanessa), Danielle’s mother, had been driving

behind her on the access road and ran to her after the accident occurred.

Vanessa noticed that one of Danielle’s feet had been displaced and that Danielle

was screaming; Vanessa called 9-1-1. Appellant walked toward Danielle’s car

and looked at her before running away.         An ambulance took Danielle to a

hospital, where she received treatment for a broken right ankle.

      After arriving at the scene, a police officer found that appellant’s car did not

have a license plate attached to its front and back ends. But the car contained a

passport and a birth certificate bearing appellant’s name. It also contained pipes

used for smoking methamphetamine.



      2
       Appellant does not ask us to reverse his convictions; he requests only that
we “reverse his sentences . . . and remand for a new sentencing hearing.”
      3
       To protect the identity of persons associated with this appeal, we use
aliases. See Tex. R. App. P. 9.10(a)(3), (b); McClendon v. State, 643 S.W.2d
936, 936 n.1 (Tex. Crim. App. [Panel Op.] 1982).


                                         2
      Appellant ran across a grassy field and eventually entered a residential

neighborhood. A witness of the accident followed him in a car and called the

police. When appellant arrived at the house of Shahram Masoumi, who was not

there at the time, he broke through and damaged the back fence and back door,

broke a satellite, stayed inside the house for several minutes, and left.

      Appellant then jumped over a fence and entered another house, where

fifteen-year-old D.S. (Dylan) and A.S. (Amy), Dylan’s three-year-old sister, were

present. Upon entering, appellant told Dylan that he had crashed his car and

that he wanted to “lay low for a while.” Dylan heard sirens and discerned that the

police were looking for appellant.

      Appellant remained in Dylan’s house for approximately thirty minutes.

While there, he stated that he would not harm Dylan as long as Dylan cooperated

with his requests. Dylan was scared for his and Amy’s safety and believed that

they could not leave. Appellant drank some water, washed his face, and lay on a

bed to catch his breath. He then told Dylan to go outside and to “ward off the

police that were around the area” while appellant remained in the house with

Amy. After crossing his front yard, Dylan talked to a police officer. To “play it

smart,” Dylan did not tell the officer about appellant’s presence in the house, and




                                         3
Dylan returned to the house. At some point, appellant told Dylan that he would

slit Dylan’s throat if Dylan did not do what appellant asked of him. 4

      After appellant stole a shirt and a pair of shoes and put them on, Dylan told

appellant that his parents were likely on their way home. Appellant eventually

told Dylan to take off his shirt and his glasses; he planned to create a diversion

by having himself and Dylan run out of the house in opposite directions.

Attempting to ensure his and Amy’s safety, Dylan took off his shirt and glasses.

But as Dylan opened the door to start running, he saw his parents walking toward

the house. Dylan began to tell his father what had happened in the last half hour,

and his father ran into the house. Appellant escaped through a window.

      The police eventually found appellant in that neighborhood. An officer told

appellant to show his hands and to get on the ground, and appellant repeatedly

asked the officer to shoot him. That officer could not restrain appellant on her

own, but with the use of two Tasers and other physical force, the police

eventually detained appellant, who was flailing, screaming, sweating, and

appeared to be intoxicated.      During the struggle that resulted in appellant’s

detainment, two police officers were injured.       In appellant’s possession, the




      4
       Dylan testified, “I [felt] like at any moment . . . the whole situation could
have just turned the opposite direction, so I tried to keep it as professional and
calm as I could.”


                                          4
police found a wallet that contained marijuana, Xanax, and methamphetamine;

two screwdrivers; a razor blade; 5 and a cell phone.

      After appellant’s arrest, Arlington police officer Phillip Hill spoke with Dylan,

who was nervous and “visibly shaken up.”             Officer Hill found appellant’s

discarded clothing inside Dylan’s house. Dylan identified appellant as the man

who had entered his house and had threatened him. Appellant received medical

treatment at a hospital, where blood and urine test results established the

presence of alcohol, cannabinoids (from using marijuana), amphetamines, and

benzodiazepines (a class of drugs that includes Xanax) in his body. 6

      Through separate indictments, appellant was charged with burglary (by

entering a habitation and committing or intending to commit kidnapping),

aggravated assault with a deadly weapon (based on the crash), and possessing

less than a gram of methamphetamine. In each case, he received appointed

counsel; filed several pretrial motions, including an application for placement on

community supervision “for whatever punishment may be assessed”; and chose

the jury to assess his punishment if he was convicted.

      At a combined trial on the charges, appellant pled guilty to possessing

methamphetamine and to aggravated assault, but he pled not guilty to burglary.

      5
       During the punishment phase of the trial, appellant testified that he carried
the razor blade to cut lines of methamphetamine.
      6
        A toxicologist testified that when these substances are taken together,
their negative effects may be multiplied. Specifically, he explained that “[a]lcohol
increases the danger or the negative side effects of just about every other drug.”


                                          5
After hearing evidence and arguments and briefly deliberating, the jury found him

guilty of burglary. The jury heard evidence concerning appellant’s punishment 7

and assessed twenty-five years’ confinement for burglary, twenty years’

confinement for aggravated assault, and two years’ confinement for possessing

methamphetamine.      The jury did not recommend appellant’s placement on

community supervision for any of the offenses. The trial court sentenced him in

accordance with the jury’s verdicts and ordered the sentences to run

concurrently.

      Appellant filed a motion for new trial in which he argued that his sentences

were “grossly disproportionate to the facts of the case[s] and reflected no

consideration of mitigative evidence[,] contravening the [s]tate and [f]ederal

[c]onstitutional prohibition[s] against cruel and unusual punishment.” The trial

court did not expressly rule on the motion, and it was therefore overruled by

operation of law. 8 Appellant brought these appeals.

                   Allegedly Unconstitutional Punishment

      In his sole point, appellant contends that his sentences are unconstitutional

because they are grossly disproportionate to the facts of the offenses and are

therefore cruel and unusual. 9 See U.S. Const. amend. VIII; Tex. Const. art. I,


      7
       We will summarize this evidence below.
      8
       See Tex. R. App. P. 21.8(a), (c).
      9
       In the trial court and on appeal, appellant has raised federal and state
constitutional complaints, but he has not analyzed them separately. We will

                                           6
§ 13. He raised this argument for the first time in his motion for new trial. We

review a trial court’s denial of a motion for new trial for an abuse of discretion.

Colyer v. State, 428 S.W.3d 117, 122 (Tex. Crim. App. 2014).          A trial court

abuses its discretion by denying a motion for new trial when no reasonable view

of the record could support its ruling. Id.

      The factfinder’s discretion to impose any punishment within a prescribed

statutory range is essentially “unfettered.” Ex parte Chavez, 213 S.W.3d 320,

323 (Tex. Crim. App. 2006).          Subject only to an “exceedingly rare” and

“somewhat amorphous” gross-disproportionality review required by the Eighth

Amendment, a punishment that falls within the legislatively-prescribed range and

that is based upon the factfinder’s informed normative judgment is unassailable

on appeal.    Id. at 323–24; Adetomiwa v. State, 421 S.W.3d 922, 928 (Tex.

App.—Fort Worth 2014, no pet.); see Lawrence v. State, 420 S.W.3d 329, 333

(Tex. App.—Fort Worth 2014, pet. ref’d) (“Generally, punishment assessed within

the permitted statutory range is not subject to a challenge for excessiveness.”);

Sample v. State, 405 S.W.3d 295, 304 (Tex. App.—Fort Worth 2013, pet. ref’d)

(stating the same).

      When deciding whether an exceptional sentence might be grossly

disproportionate to an offense committed, we compare the gravity of the offense

consider these complaints together. See Cantu v. State, 939 S.W.2d 627, 645
(Tex. Crim. App.) (declining to interpret the language of our state constitution’s
prohibition of inflicting cruel or unusual punishment as more expansive than the
federal constitution’s similar provision), cert. denied, 522 U.S. 994 (1997).


                                          7
committed with the severity of the sentence. 10 Lawrence, 420 S.W.3d at 333;

see also Alvarez v. State, 63 S.W.3d 578, 581 (Tex. App.—Fort Worth 2001, no

pet.) (“We judge the gravity of the offense in light of the harm caused or

threatened to the victim or society and the culpability of the offender.”). We also

consider the likely impact of the defendant’s criminal history on the factfinder’s

punishment decision. Sample, 405 S.W.3d at 304–05 (recognizing that a repeat

offender’s sentence is not based “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”); Culton v.

State, 95 S.W.3d 401, 403–04 (Tex. App.—Houston [1st Dist.] 2002, pet. ref’d).

      By the effects of his guilty pleas and after considering the evidence

presented at trial, the jury convicted appellant, who was thirty-three years old at

the time of the trial, of three felony offenses: possession of less than a gram of

methamphetamine, which (as a state jail felony) carries a punishment range of

up to two years’ confinement; aggravated assault with a deadly weapon, which

(as a second-degree felony) carries a punishment range of up to twenty years’

      10
         If we determine that a sentence is grossly disproportionate to an offense,
we may also consider the sentences imposed on other criminals in the same
jurisdiction and the sentences imposed for the commission of the same crime in
other jurisdictions. See Hammer v. State, No. 02-13-00480-CR, 2015 WL
1407385, at *3 (Tex. App.—Fort Worth Mar. 26, 2015, no pet.) (citing Moore v.
State, 54 S.W.3d 529, 541 (Tex. App.—Fort Worth 2001, pet. ref’d)); Pollard v.
State, Nos. 02-11-00496-CR, 02-11-00497-CR, 02-11-00498-CR, 02-11-00499-
CR, 02-11-00500-CR, 2012 WL 5447955, at *1 (Tex. App.—Fort Worth Nov. 8,
2012, no pet.) (mem. op., not designated for publication). Appellant did not
present any such evidence.


                                        8
confinement; and burglary of a habitation, which, under the circumstances of this

case (as a first-degree felony) carries a punishment range of confinement for up

to ninety-nine years or life.   See Tex. Penal Code Ann. §§ 12.32(a), .33(a),

22.02(a)(2), (b), 30.02(a)(1), (d) (West 2011), § 12.35(a) (West Supp. 2014); Tex.

Health & Safety Code Ann. § 481.115(b) (West 2010). The jury assessed the

maximum punishment for possession of methamphetamine and for aggravated

assault (two and twenty years’ confinement, respectively), but it assessed only

one quarter of the maximum confinement—twenty-five years—for burglary. 11

      The jury could have rationally determined that appellant’s crimes were

sufficiently grave to justify these sentences. The evidence shows that appellant’s

possession and use of methamphetamine contributed to the aggravated assault

and that as a result of this assault, Danielle suffered an ankle injury 12 that caused

significant pain and will affect her for the rest of her life. In the punishment

phase, Danielle testified that when the crash occurred, she “looked down, and

[her] foot was twisted in a way that . . . wasn’t supposed to be twisted.” She

stated that appellant “ran instead of helping [her] while [she] was crying and . . .

screaming.” After the heavy swelling in Danielle’s ankle subsided, she had two

surgeries.   She also required physical therapy for seven or eight months.


      11
        Appellant concedes that his sentences are “within the applicable
statutory penalty ranges.”
      12
        From the wreck, Danielle also suffered from a rash on her chest and a
swollen lip.


                                          9
Danielle’s foot will never be normal again; for example, she cannot kick a ball,

run, or walk up stairs normally.     Danielle has nightmares about the crash.

According to Vanessa, at the time of the trial, which occurred nine months after

the wreck, Danielle’s ankle was still not healed; she was still limping, and her

injured ankle looked different than her other ankle.         Vanessa explained,

“Danielle’s not the same person she was, not physically, not emotionally. She’ll

never be the same person. We’ll never be the same family.”

      The evidence also shows that during his crime spree, appellant broke into

multiple homes (damaging and stealing property in the process) and confined

and threatened Dylan and Amy, who were both children, for approximately half

an hour. Particularly, appellant threatened to slit Dylan’s throat if Dylan did not

do what appellant commanded. Later, appellant resisted police officers’ attempts

to detain him, causing minor injuries to two of them.

      The jury also heard about appellant’s criminal activity that was unrelated to

the events supporting these three convictions. On the day before his arrest for

the events leading to his convictions in these cases, appellant was spotted

outside of an Addison apartment on an early morning, was suspected of

committing burglary of a habitation, 13 and was arrested for evading arrest and

possessing methamphetamine. On that occasion, after the police found him and


      13
        A caller to the police reported seeing a man jump over a balcony into a
patio area and then jumping back over the balcony with a “cylindrical object in his
hand.”


                                        10
caught up to him while he was running, he engaged in a physical struggle but

was finally subdued with the assistance of three officers, handcuffs, and leg

restraints. Appellant, who was intoxicated, possessed a small baggy containing

methamphetamine and one Xanax pill.

       Appellant also has two older convictions for driving while intoxicated (DWI).

The record indicates that concerning one of those DWIs, appellant was stopped

and arrested after driving 113 miles per hour. With regard to appellant’s first DWI

conviction, he was placed on community supervision but violated the terms of it

by committing another DWI. Appellant committed the three offenses at issue

only a year after being discharged from community supervision for his second

DWI.

       Appellant presented evidence that the jury could have considered (and

perhaps did consider) 14 as mitigating. Appellant’s mother, V.P. (Violet), testified

that when appellant was very young, his father, A.N. (Aaron), was physically

abusive and used alcohol and drugs to the point of intoxication. According to

Violet, Aaron would choke her in front of appellant, prompting appellant to ask

Aaron not to kill Violet.   Violet testified that Aaron was strict and mean to

appellant and that when appellant was three years old, Aaron took him out of the

       14
         Appellant argues that mitigating evidence, including issues related to his
addictions to drugs and alcohol, was not “fairly considered by the jury as
reflected by the grossly disproportionate maximum sentence assessed.” But the
jury could have considered this evidence when assessing appellant’s
confinement for burglary at twenty-five years, which is on the lower end of the
first-degree felony punishment range.


                                        11
state and separated from Violet. Also, Violet admitted that before Aaron left her,

while she still had custody of appellant, she was not a good mother and made

“very bad decisions.”

       Appellant returned to Texas and began living with Violet again when he

was eleven years old. He told Violet at that time that he had been living in

shelters, that he had been expected to “take care of” his younger brother, and

that Aaron had been abusive to various women after leaving Texas.

       Concerning appellant’s development after he began living with her again,

Violet testified,

       Joseph has always been a great kid. He’s always been good to me.
       He’s always been respectful. He’s always been an achiever. . . .

             I was a waitress for many years, so I taught him how to be a
       server. From there, he got a job at a five-star restaurant, worked his
       way up in the company to a manager. From there, he met someone
       who gave him an opportunity at Bank of America. From that, with
       hardly no education, he ran with it and learned on his own through
       the company. He eventually built himself up to be a mortgage
       broker. Bank of America sent him to college, and he got married, he
       had a family.

Violet acknowledged, however, that appellant has a problem with abusing alcohol

and drugs that first surfaced when he began getting laid off from work. She

testified that appellant began using methamphetamine when he was a server at a

restaurant so that he could work at a second job without becoming tired.

       Appellant has been married twice.       He has a total of three children,

including two through his current wife.      Upon his arrest for these charges,

appellant stayed in jail for six months before he was released on bond.


                                        12
According to Violet, since appellant’s release, he got a job, paid some child

support to his first wife, and sought treatment for his substance abuse (including

attending Alcoholics Anonymous meetings).           Violet recognized, however, that

appellant had previously sought counseling for abusing alcohol before

committing these offenses.

      Violet testified that appellant has a “heart of gold,” is a great father, and is

“very protective”; she explained that appellant does not show these qualities

when he is using drugs. She asked the jury to recommend appellant’s placement

on community supervision because she believed “in [her] heart and [her] soul

that putting [appellant] in prison [would] not . . . do any good.” She testified,

“[Appellant has] three children that depend on him [and] that idolize him, and . . .

it’s going to deeply affect the rest of their lives if he goes to prison.”

      William Ritchie, who works with troubled youth, testified that he has known

appellant since 2000, when they were both waiters at a restaurant.            Ritchie

stated that appellant is an “incredible” and “valiant” father who has worked hard

to provide for his family. Ritchie opined that appellant had the drive and desire to

succeed on probation, and Ritchie stated that he could help hold appellant

accountable for the terms of probation if the jury recommended it. According to

Ritchie, appellant’s actions on the date of these offenses were “absolutely out of

character.” But Ritchie recognized that appellant’s prior placement on probation

for his DWI offenses had not abated future criminal activity. He also conceded




                                           13
that appellant had not called him for support before committing several offenses

over the course of two days in August 2013.

      Raymond Arendondo, who supervised appellant at a car dealership where

appellant was working at the time of trial, testified that he met appellant at a

church retreat and that appellant had attempted to be active in church since then.

Arendondo stated that at work, appellant was punctual and dependable. He

testified that appellant’s work schedule would allow him to meet requirements of

probation and attend Alcoholics Anonymous meetings.

      Mary Jo Gutierrez, a probation officer, told the jury about many potential

conditions of probation, including committing no further offenses, reporting

regularly to a probation officer, not using drugs or alcohol, completing community

service, and paying a victim’s restitution. She also spoke about drug treatment

programs—including long-term inpatient treatment—that could be available to

appellant if the jury recommended probation for him. Gutierrez opined, however,

that a defendant is not a good candidate for probation when in relation to a

different offense in the past, the defendant has violated probation by committing

a new offense.

      In his punishment-phase testimony, appellant apologized to Dylan and

Amy’s family and Danielle and Vanessa’s family for the harm he had caused

them. He stated that because of his drug use at the time, he did not remember

anything about getting arrested or being confined for the incidents in Addison or

in Arlington over the course of two days in August 2013. He explained that near


                                       14
that time, he was taking several prescribed medications to help reduce anxiety

and to sleep and that he mixed those medications with drinking alcohol and using

methamphetamine.

      Appellant explained that his “dad was a truck driver” who “took [him] from

[his] mother.” He stated that he constantly moved to different cities and never

went to the same school for consecutive years. He explained that during that

time, his father used methamphetamine and was physically abusive to him and

his brother.

      Appellant admitted that he was addicted to alcohol and illegal drugs, and

he testified that he could benefit from treatment programs. 15 He explained that

upon his release from six months of pretrial confinement for these three offenses,

he began attending Alcoholics Anonymous or a similar program for drug abusers

four times per week and had not used alcohol or any illegal drugs. 16 Appellant

also testified that he attempted to go to inpatient drug treatment but that he could

not afford it. He explained that he would be willing to comply with all conditions

of probation, including completing drug treatment and 320 hours of community

service and paying restitution to Danielle.      When his counsel asked why he

deserved probation after threatening to slit Dylan’s throat, appellant testified,


      15
      Appellant began using marijuana when he was eleven years old and later
used methamphetamine and cocaine.
      16
        Appellant testified that he had been drug tested three times since his
release and that he had passed each test.


                                         15
      I’m not saying I deserve probation, not at all. I’m just begging for the
      mercy of the jury and the Judge today. That was not in my
      character. And I do have a problem, and I just don’t want to see
      anybody else get hurt because of me. I don’t want my children to
      grow up without a father.

      Appellant’s wife of nine years, K.N. (Kim), testified that a couple of months

before the accident, appellant’s behavior began to change: he became very

nervous, looked different, did not sleep, and cried a lot. According to Kim, after

his most recent release from confinement, while he was awaiting trial of these

charges, appellant found God and thrived in his relationship with her and their

children. She testified that appellant needed inpatient drug treatment and that

she could survive financially while he received it. 17 While Kim admitted that there

was “no excuse” for appellant’s crimes, she asked the jury to place appellant on

probation; she pled for “compassion and . . . forgiveness for a . . . beautiful

person.”

      But when the State asked Danielle whether appellant should be placed on

probation, she said no and explained,

      [W]hat he did to me, it may be minor in some people’s eyes because
      it’s just an ankle, but I don’t think [appellant has] learned from his
      [DWIs] or from any of his past accidents. I don’t think probation is
      going to help because he’s already been on probation, and I don’t
      think he should be free. I don’t think he should get out of jail
      because this time it was just my ankle; next time, what is it going to
      be? Another child dead? Another child with a broken ankle?
      Another adult? Someone dead eventually? And I don’t think he
      should be free to teach his kids that it’s okay to break someone’s

      17
       She also testified that she and the children could survive financially if
appellant was confined.


                                        16
      ankle and to ruin someone’s life and just get off on probation. I don’t
      want to see him free. I want to see him in prison. I want to see him
      in jail. And I don’t think he’s going to learn anything if he has
      probation because he hasn’t learned from any of his past mistakes.

      Considering all of these facts and the other evidence presented to the

jury, 18 we cannot conclude that the jury acted unreasonably or arbitrarily when

exercising its near-unfettered discretion to impose the sentences at issue. See

Chavez, 213 S.W.3d at 323.         Even while recognizing the mitigating facts

described above, the jury could have rationally assessed lengthy terms of

confinement based, in part, on the harm or threatened harm to the victims of

appellant’s crimes at issue and on his failure to abate criminal conduct after

receiving leniency, in the form of community supervision, for prior offenses. 19

See Sample, 405 S.W.3d at 304–05 (considering a defendant’s criminal history in

determining whether his sentence was constitutionally excessive); Alvarez, 63

S.W.3d at 581 (considering the harm caused and threatened to the victim); see

also Stuer v. State, No. 02-14-00243-CR, 2015 WL 1407750, at *3–4 (Tex.

App.—Fort Worth Mar. 26, 2015, no pet.) (mem. op., not designated for

publication) (stating that because a defendant had received leniency with regard


      18
         We note that we are reviewing the evidence based on a cold record,
while the jury saw the witnesses, including appellant, and could judge their
credibility and sincerity. See Franklin v. State, 193 S.W.3d 616, 620 (Tex.
App.—Fort Worth 2006, no pet.) (explaining that the jury is free to accept or
reject any or all of the evidence of either party).
      19
        We reject appellant’s argument that the evidence showed only “a single
day of escalating poor choices.”


                                        17
to past crimes by being placed on community supervision but had violated terms

of the community supervision, the jury “could have . . . reasonably rejected [the

defendant’s] claim” that she would be able to refrain from committing more

crimes). Likewise, we conclude that the trial court did not abuse its discretion by

denying (by operation of law) appellant’s motion for new trial based on the

alleged excessiveness of his sentences. Colyer, 428 S.W.3d at 122.

      Appellant relies on the court of criminal appeals’s decision in Jackson v.

State, 680 S.W.2d 809 (Tex. Crim. App. 1984). There, the court held that a trial

judge had abused his discretion in setting punishment when the judge had not

presided over the trial on the appellant’s guilt and had not allowed either party to

offer punishment-related evidence.      Id. at 810–14.     Here, the jury received

substantial evidence in the guilt-innocence and punishment phases of appellant’s

trial; appellant’s reliance on Jackson is therefore misplaced. See id.

      For all of these reasons, we conclude that appellant’s sentences are not

unconstitutionally excessive and that the trial court did not abuse its discretion by

denying his motion for new trial. We overrule his sole point.




                                         18
                               Conclusion

      Having overruled appellant’s only point, we affirm the trial court’s

judgments.

                                             /s/ Terrie Livingston

                                             TERRIE LIVINGSTON
                                             CHIEF JUSTICE

PANEL: LIVINGSTON, C.J.; GARDNER, J.; and CHARLES BLEIL (Senior
Justice, Retired, Sitting by Assignment).

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

DELIVERED: June 9, 2015




                                    19
