Opinion issued June 13, 2019




                                      In The

                              Court of Appeals
                                     For The

                          First District of Texas
                             ————————————
                              NO. 01-18-00216-CR
                            ———————————
                      DANA LATRAY NEALY, Appellant
                                        V.
                       THE STATE OF TEXAS, Appellee


                    On Appeal from the 10th District Court
                          Galveston County, Texas
                       Trial Court Case No. 16CR1982


                          MEMORANDUM OPINION

      Appellant Dana Latray Nealy was convicted of the third-degree felony offense

of harassment in a correctional facility.1 After finding an enhancement paragraph to

be true, the jury assessed her punishment at 3.75 years’ incarceration in the Texas

1
      TEX. PENAL CODE § 22.11(a)(1) & (c).
Department of Criminal Justice––Institutional Division.2 In five issues, Nealy

argues: (1) her punishment violates the constitutional prohibition against cruel and

unusual punishment, (2) the statute she was convicted of violating is

unconstitutional, (3) she received ineffective assistance of counsel, (4) her

prosecution for this offense violates the Double Jeopardy clauses in the United States

and Texas Constitutions, and (5) there is insufficient evidence supporting her

conviction.3 Finding no reversible error, we affirm the trial court’s judgment.

                                     Background

      Nealy went to her cousin’s home to retrieve a game console, but she was not

allowed to go inside because there were children present and her cousin and a man

at the residence believed Nealy was high on something. After Nealy pushed her way

into the home, the man dragged her back outside. Nealy, who jammed her toe during

this altercation, called 911 and reported that she had been assaulted.

      Officer Boyd and Officer Velasquez of the Dickinson Police Department were

dispatched to the residence to investigate Nealy’s report. Officer Boyd, who was the


2
      Nealy’s punishment was enhanced to a second-degree felony because the jury found
      that she had been convicted of a prior felony offense. See TEX. PENAL CODE
      § 12.42(a); see also TEX. PENAL CODE § 12.33(a) (stating second-degree felonies
      are punishable by imprisonment “for any term of not more than 20 years or less than
      2 years”).
3
      Nealy’s claims based on the constitutionality of section 22.11 of the Texas Penal
      Code, double jeopardy, and sufficiency of the evidence are potentially dispositive
      and would afford her the most relief. Therefore, we will address those issues before
      her claims of cruel and unusual punishment and ineffective assistance of counsel.
                                           2
first to arrive at the scene, approached Nealy who was attempting to drive away.

Nealy’s young daughter was also in the vehicle. After briefly speaking with Nealy,

Officer Boyd instructed her to park her vehicle because Officer Velasquez needed

to get some additional information from her.

      Officer Velasquez, who noticed signs of intoxication when he spoke with

Nealy, had her perform some field sobriety tests to determine if she was intoxicated.

Officer Velasquez testified that Nealy showed all six clues of intoxication on the

horizontal gaze nystagmus test. At trial, Nealy denied that she was under the

influence of any substance the day she went to her cousin’s home, but she admitted

that she used marijuana and PCP.

      When Officer Velasquez asked Nealy if she was “on” something, Nealy

denied that she was “on” anything and she put her seatbelt back on and tried to drive

away. The officers stopped Nealy from leaving and arrested her for public

intoxication. Nealy, however, refused to cooperate when the officers attempted to

take her into custody and had to be handcuffed and forced into the backseat of

Officer Velasquez’s patrol car by three officers.

      Nealy cried and screamed obscenities at Officer Velasquez during the drive

to the Dickinson jail. Although she was compliant when she walked into the booking

area, Nealy became irate again when a female jailer tried to search her, and she had

to be physically restrained by Officer Velasquez. Nealy refused to walk to her cell


                                          3
and she had to be taken there by force. She banged on the cell door with her fists and

feet for almost half an hour after the officers left her cell and she repeatedly spat on

the cell door’s window.

      Later that evening, Nealy took off her dress and wrapped it around her neck

and yelled that was going to hurt herself. Although she told the jailer that she wanted

to commit suicide, Nealy testified that she was only acting like she was going to kill

herself because she wanted the officers to pay attention to her. When Officer

Velasquez checked on Nealy to assess whether she posed a suicide risk, Nealy tried

to push him out of the way and walk out of her cell. She became more aggressive

and combative after he pushed her back inside. She also shoved Officer Velasquez

from behind as he walked out of the cell.

      Nealy spat on the cell door’s window multiple times after he left, and she

yelled to Officer Velasquez that she wanted to fight him. Officer Velasquez and the

jailer were standing outside Nealy’s cell door at the time.

      Nealy needed to be moved from Dickinson to the Galveston County Jail where

she could post bond. The deputy who had been sent to transport Nealy to the county

jail refused to move her after she told him that he was “just like them.” Nealy began

shaking in apparent anger and refused to comply.

      After giving Nealy multiple opportunities to walk back to her cell, the deputy

and Officers Boyd and Velasquez dragged her back to her cell while she kicked and


                                            4
fought and screamed more obscenities. They were eventually able to get Nealy back

in the cell with some help from a jailer.

      The struggle began again when Nealy grabbed the jailer’s pants leg as she

tried to leave the cell and refused to let go. Officer Boyd came back and tried to

restrain Nealy by pinning her to the ground. Nealy struggled and yelled obscenities

and tried to grab Officer Boyd’s baton and radio. Officer Velasquez also tried to pin

her down using his body weight. Officer Boyd testified that he was trying to control

Nealy’s arms and he “heard her spit about the time [he] got face-to-face” with her.

Nealy did not spit on Officer Boyd, however, because he had his hand around her

chin again and her face was turned away. However, Officer Boyd let go of Nealy’s

chin after she grabbed his radio, and “that’s when she spit in [his] face.” Some of the

spit got in Officer Boyd’s right eye. This caused Officer Boyd to shut his eyes.

      Nealy admitted that she grabbed Officer Boyd’s radio during the struggle, but

she repeatedly denied spitting in his face and claimed that she only spat on the

window. “I spit on the window, like, plenty of times. But at the end of the day, I

never spit on the officer.” “I never spit on any person. I only spit on the window.”

Nealy also denied that she had any “intent to assault, harass, or alarm” Officer Boyd

by causing him to come into contact with her saliva.




                                            5
A.    Charges

      Nealy was indicted for harassment by a person in a correctional facility under

Penal Code section 22.11(a)(1).4 The indictment alleges that Nealy “while

imprisoned or confined in Dickinson Jail, a detention facility, and with intent to

assault, harass, or alarm, cause[d] Cleveland Boyd to contact the saliva of the

defendant.” Nealy was also charged with public intoxication, resisting arrest, and

assault against Officer Velasquez, a Class C misdemeanor.5 According to Nealy, she

was charged with spitting on Officer Velasquez because of her actions in the

Dickinson jail. She further contends that although both offenses “arose from the

same incident, and both alleged the same spit,” the offense against Officer Velasquez

was charged as a Class C misdemeanor, whereas the offense against Officer Boyd

was charged as a third-degree felony.

      On November 27, 2017, Nealy pleaded “no contest” to the public intoxication

charge, a Class C misdemeanor, and the Dickinson Municipal Court sentenced her

to a fine of $300.




4
      Nealy was initially indicted for harassment of a public servant under Penal Code
      section 22.11(a)(3). The State subsequently re-indicted her for harassment by person
      in a correctional facility under Penal Code section 22.11(a)(1).
5
      The record does not include a copy of the indictment for assault against Officer
      Velasquez or a copy of Nealy’s plea papers.

                                           6
B.    Pretrial

      The record reflects that Nealy believed that the charge for spitting on Officer

Boyd had been dropped and she did not understand why she was going on trial in

this case. The trial judge addressed Nealy’s concerns during a pretrial hearing.

      Trial Judge: Ms. Nealy, I understand you have some concerns or
            confusion about this case and the facts and the issue?

      Nealy: Yes. And I went to court already in Dickinson behind the same
            charge. They already dropped -- dropped and dismissed my
            charges. And I already did seven months behind this same
            charge, and I’m just trying to figure out why am I --

      Trial Judge: Okay. My understanding is you were charged in Dickinson
             or some place for public intoxication; is that correct?

      Nealy: Uh-huh.

      Trial Judge: And you were taken to the Dickinson jail, and while there,
             you committed the offense that we are here for today.

      Defense Counsel: Allegedly.

      Trial Judge: Allegedly. Allegedly, yes. So, those are two separate
            offenses. You did whatever was necessary to satisfy the system
            for the public intoxication; but the harassment is a separate
            incident, separate thing, and it’s separate from the public
            intoxication.

      Nealy: It was -- it was the same thing. It was a spitting in the police
            face. They -- they said I spit in the police face. It was for the
            officer. I – that never happened.

      Trial Judge: Well, I don’t know if it did or not. That’s why we’re saying
             “allegedly.” But I’m telling there are two separate offenses.

      ....


                                          7
      Prosecutor: I think where some of her confusion may be is she was also
            charged with a Class C Assault by Contact on Officer Velasquez,
            which she pled to. This is on a separate officer. So, that may be
            some of her confusion when she’s thinking she pled to an assault,
            which she did on an officer. It was a Class C and separate from
            another officer.

      Trial Judge: Okay. All right. Well, this is a whole separate matter,
             separate trial, and separate everything. So, while I understand,
             you think you’ve paid your debt to society, you have not in this
             one. And if you are found guilty, again the charges are not -- have
             not been proven, it is a separate offense.

C.    Trial

      Officer Boyd, Officer Velasquez, Nealy, and others testified at trial. The State

also introduced videos taken by Officer Boyd’s and Officer Nealy’s body cameras,

as well as surveillance videos taken of the inside of Nealy’s cell, the hallway near

Nealy’s cell, and the booking area. Nealy’s counsel argued that none of the videos

showed her spitting on Officer Boyd. The State acknowledged during closing

argument that although one of the videos showed Nealy lifting her head up during

her struggle with Officer Boyd, “[t]here’s a time stamp on it, and it kind of blocks

whatever comes out of her mouth.” After hearing all the evidence, the jury found

Nealy guilty as charged.

      During the sentencing phase, the State introduced evidence of Nealy’s 2001

conviction for delivery of a controlled substance and 2017 conviction for public

intoxication. The jury was instructed that because Nealy had pleaded true to being

convicted of a prior felony as alleged in the enhancement paragraph, the jury was

                                          8
required to assess her punishment of not less than two years and no more than twenty

years’ confinement in TDCJ, plus a fine not to exceed $10,000.

      The jury assessed Nealy’s punishment at 3.75 years’ confinement.

                         Constitutionality of Section 22.11

      In her second issue, Nealy argues that section 22.11 is unconstitutional

because it is so vague that “it allows the State unbridled power to pick and choose

whether they want to charge a person with a Class C or a felony for the same act.”

According to Nealy, the statute’s infirmities are evidenced by the fact that the State was

able to charge her with a third-degree felony for spitting on Officer Boyd and a Class

C misdemeanor for spitting on Officer Velasquez, even though both offenses “arose

from the same incident, and both alleged the same spit.”

      The State contends that Nealy is challenging the constitutionality of section

22.11 for the first time on appeal and, therefore, she has not preserved this issue for

our review. Both facial constitutional challenges to statutes and as-applied

constitutional challenges must be preserved in the trial court and cannot be raised

for the first time on appeal. Karenev v. State, 281 S.W.3d 428, 434 (Tex. Crim. App.

2009) (facial constitutional challenge); Curry v. State, 910 S.W.2d. 490, 496 (Tex.

Crim. App. 1995) (as-applied constitutional challenge). Nealy acknowledges that




                                            9
her counsel “failed to challenge the constitutionality” of section 22.11 in the trial

court. Accordingly, we hold that error was not preserved. TEX. R. APP. P. 33.1(a).6

      We overrule Nealy’s second issue.

                                 Double Jeopardy

      In her fourth issue, Nealy argues that the State violated her right against

double jeopardy by prosecuting her for committing the charged offense against

Officer Boyd. Specifically, Nealy contends that she should not have been prosecuted

for committing the charged offense against Officer Boyd because she had already

pleaded guilty to, and been convicted of, committing a Class C misdemeanor offense

of assault against Officer Velasquez for actions that occurred during the same

transaction.7

A.    Preservation

      Generally, a double jeopardy claim must be raised in the trial court to preserve

the error for appellate review. Gonzalez v. State, 8 S.W.3d 640, 642 (Tex. Crim.

App. 2000). Nealy suggests that she preserved this issue by bringing her Class C

misdemeanor for spitting on Officer Velasquez to the court’s attention during the




6
      Unlike Nealy’s double jeopardy and cruel and unusual punishment arguments, it is
      not necessary for us to consider the merits of Nealy’s constitutional challenge in
      order to address her ineffective assistance of counsel argument on this ground.
7
      The record does not include a copy of the indictment for misdemeanor assault or a
      copy of Nealy’s plea agreement.

                                          10
pretrial hearing. Even assuming without deciding that Nealy’s double jeopardy claim

is preserved for our review, she would not prevail on the merits.

B.    Standard of Review and Applicable Law

      Double jeopardy raises a legal issue of constitutional dimensions; we review

de novo a trial court’s disposition on double jeopardy grounds. See United States v.

Arreola–Ramos, 60 F.3d 188, 191 (5th Cir. 1995); Ex parte Peralta, 87 S.W.3d 642,

645 (Tex. App.—San Antonio 2002, no pet.).

      The Fifth Amendment to the United States Constitution provides that a person

shall not be twice put in jeopardy for the same offense. See U.S. CONST. amend. V.

The Fifth Amendment’s protection against double jeopardy is made applicable to

the states through the Due Process Clause of the Fourteenth Amendment. Brown v.

Ohio, 432 U.S. 161, 164 (1977). The Texas Constitution provides substantially

identical protections against double jeopardy. See TEX. CONST. art. I, § 14 (“No

person, for the same offense, shall be twice put in jeopardy of life or liberty; nor

shall a person be again put upon trial for the same offense, after a verdict of not

guilty in a court of competent jurisdiction.”).

      The threshold question in a double-jeopardy analysis is whether the defendant

is being punished or prosecuted for the “same offense.” State v. Perez, 947 S.W.2d

268, 270 (Tex. Crim. App. 1997) (citing United States v. Dixon, 509 U.S. 688, 696

(1993)). In determining whether the offenses are the same, we inquire into legal


                                          11
sameness and factual sameness. Ex parte Castillo, 469 S.W.3d 165, 172 (Tex. Crim.

App. 2015). Legal sameness depends on the pleadings and statutory law to ascertain

whether two offenses are the same. Id. at 172. When two different statutory

provisions are at issue, we determine legal sameness by applying the “same-elements

test” to determine whether “each provision requires proof of a fact which the other

does not.” Id. at 168 (quoting Dixon, 509 U.S. at 697).

      If the offenses are legally the same, the next step is to determine whether the

offenses are factually the same. Id. at 169 (citing Ex parte Benson, 459 S.W.3d 67,

72 (Tex. Crim. App. 2015)). In determining whether the offenses are factually the

same, we determine the allowable unit of prosecution and then review the trial record

to establish how many units have been shown. Id. For double jeopardy purposes,

assaults on different victims represent factually separate offenses. See id. at 171–72.

The burden is on the appellant to prove legal sameness and factual sameness. Id.

      Assuming without deciding that Nealy’s misdemeanor and felony offenses are

legally the same, these offenses are not factually the same because they allege two

different units of prosecution, i.e., two different victims: Officer Velasquez and

Officer Boyd, respectively. Therefore, these offenses are not factually the same for

purposes of double jeopardy. See id. at 168. Because the offenses are not factually

the same, they do not constitute the “same offense,” and Nealy’s right against double

jeopardy was not violated when the State prosecuted her harassment by a person in


                                          12
a correctional facility after she had been prosecuted for committing the Class C

misdemeanor offense of assault against Officer Velasquez. See id. at 168–69.

      We overrule Nealy’s fourth issue.

                             Sufficiency of the Evidence

      In her fifth issue, Nealy argues that there is insufficient evidence supporting

her conviction for harassment by a person in a correctional facility pursuant to Penal

Code section 22.11(a)(1) because there is no evidence that she intended to spit on

Officer Boyd.

A.    Standard of Review and Applicable Law

      When reviewing the legal sufficiency of the evidence to support a criminal

conviction, a court of appeals determines whether, after viewing the evidence in the

light most favorable to the verdict, the trier of fact was rationally justified in finding

the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia,

443 U.S. 307, 319 (1979); Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App.

2010).

      As the exclusive judge of the facts, the jury may believe or disbelieve all or

any part of a witness’s testimony. Chambers v. State, 805 S.W.2d 459, 461 (Tex.

Crim. App. 1991). We presume that the factfinder resolved any conflicting

inferences in favor of the verdict, and we defer to that resolution. See Jackson, 443

U.S. at 326. On appeal, we may not re-evaluate the weight and credibility of the


                                           13
record evidence and thereby substitute our own judgment for that of the factfinder.

Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007). In reviewing the

evidence, circumstantial evidence is as probative as direct evidence in establishing

the guilt of an actor, and circumstantial evidence alone can be sufficient to establish

guilt. Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). Juries are permitted

to make reasonable inferences from circumstantial evidence presented at trial. Id.

      Proof of a culpable mental state generally relies on circumstantial evidence

surrounding the offense. See Gahagan v. State, 242 S.W.3d 80, 86 (Tex. App.—

Houston [1st Dist.] 2007, pet. ref’d) (citing Dillon v. State, 574 S.W.2d 92, 94 (Tex.

Crim. App. 1978)). A jury may infer intent from facts that tend to prove its existence,

such as the defendant’s acts, words, and conduct. Dillon, 574 S.W.2d at 94.

      Section 22.11(a)(1) provides:

          (a) A person commits an offense if, with the intent to assault, harass,
              or alarm, the person:

             (1) while imprisoned or confined in a correctional or detention
             facility, causes another person to contact the blood, seminal fluid,
             vaginal fluid, saliva, urine, or feces of the actor, any other person,
             or an animal.

TEX. PENAL CODE § 22.11(a)(1). Based on the plain language of the statute, the State

was not required to prove that Nealy intended to spit on Officer Boyd, as Nealy

argues; rather, the State was only required to prove that Nealy intended “to assault,




                                           14
harass, or alarm” Officer Boyd when causing him to come into contact with

something on the list of substances. See id.

B.    Analysis

      Here, the record reflects that Nealy was combative with all the officers she

interacted with at the jail, including Officer Boyd. She repeatedly refused to comply

with the officers’ requests which necessitated her being taken to her cell by force on

two occasions. She tried to force her way out of her cell on another occasion after

falsely claiming that she wanted to kill herself. She yelled obscenities at the officers

throughout the evening, kicked and swung her arms at them on multiple occasions,

and repeatedly spat on her cell window. Nealy also tried to provoke additional

confrontations with the officers after they tried to disengage, such as when she

shoved Officer Velasquez from behind as he walked out of her cell and then

repeatedly spat on the window and yelled at Officer Velasquez who was standing

outside her door that she wanted to fight him.

      When Sergeant Boyd and the officers attempted to return Nealy to her cell

after the deputy refused to transport her to the county jail, Sergeant Boyd grabbed

Nealy’s chin because he thought she was going to spit. Once Nealy had been returned

to her cell and the incident appeared to be over, Nealy grabbed the jailer’s pants leg

as she tried to leave the cell. As a result, Officer Boyd returned to Nealy’s cell to

free the jailer and struggled with Nealy as he tried to restrain her. Officer Boyd


                                          15
testified that Nealy spat directly in his face during this altercation and he did not

believe that she had done so by accident.

      Although Nealy repeatedly denied spitting on Officer Boyd and the video did

not clearly show her spit in the officer’s face, the jury, as factfinder, was entitled to

disbelieve Nealy and believe Officer Boyd’s testimony that Nealy spat directly in

his face when they struggled. See Chambers, 805 S.W.2d at 461; see also Losada v.

State, 721 S.W.2d 305, 309 (Tex. Crim. App. 1986) (“The jury may believe some

witnesses and refuse to believe others[.]”). The jury could also reasonably infer from

Nealy’s combative and unruly conduct that evening that Nealy intended “to assault,

harass, or alarm” Officer Boyd by spitting in his face. See generally Ferguson v.

State, No. 01-03-01313-CR, 2005 WL 913140, at *6 (Tex. App.—Houston [1st

Dist.] Apr. 21, 2005, no pet.) (mem. op., not designated for publication) (holding

there was sufficient evidence supporting defendant’s conviction under former

version of Penal Code 22.11 based in part on circumstantial evidence of intent). After

viewing the evidence in the light most favorable to the verdict, we conclude that the

jury was rationally justified in finding that Nealy caused her saliva to contact Officer

Boyd and that she did so with the intent “to assault, harass, or alarm” Officer Boyd

beyond a reasonable doubt. See Jackson, 443 U.S. at 319.

      We overrule Nealy’s fifth issue.




                                           16
                         Cruel and Unusual Punishment

      In her first issue, Nealy argues that her sentence is grossly disproportionate to

the offense committed and, therefore, it violates the United States Constitution’s and

the Texas Constitution’s prohibitions against cruel and unusual punishment. See

U.S. CONST. amend. VIII; TEX. CONST. art. I, § 13.

      Specifically, Nealy argues that her 3.75-year sentence in this case is grossly

disproportionate to the offense she was convicted of committing, i.e., spitting on

Officer Boyd, because she could have been charged with a Class C misdemeanor,

which is only punishable by a maximum fine of no more than $500, as opposed to

the third-degree felony. Nealy contends that it was irrational for the State to have

charged her with a Class C misdemeanor for spitting on Officer Velasquez and a

third-degree felony for spitting on Officer Boyd because both offenses “arose from

the same incident, and both alleged the same spit.” She also complains that the

enhancement paragraph in her felony case prevented her from being eligible for

probation and increased her punishment range to two to twenty years and a fine of

up to $10,000.

A.    Preservation

      The Eighth Amendment prohibits cruel and unusual punishment, including

“extreme sentences that are ‘grossly disproportionate’ to the crime” committed.

Graham v. Florida, 560 U.S. 48, 59–60 (2010) (citation omitted). The right to be


                                          17
free from cruel and unusual punishment is waivable, and thus, claims of a

disproportionate sentence must be preserved for appellate review. TEX. R. APP. P.

33.1(a); Noland v. State, 264 S.W.3d 144, 151 (Tex. App.—Houston [1st Dist.]

2007, pet. ref’d). To preserve 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, stating the specific grounds for the ruling desired. See TEX. R. APP. P.

33.1(a)(1). The record does not demonstrate that Nealy asserted her grossly

disproportionate sentence claim to the trial court when her sentence was imposed in

open court, in a post-trial motion, or at any other time. Therefore, we hold that error

was not preserved. TEX. R. APP. P. 33.1(a); Noland, 264 S.W.3d at 151.

      Even if Nealy had preserved her complaint for our review, she would not

prevail on the merits.

B.    Applicable Law

      The United States Constitution’s ban on cruel and unusual punishment

“requires that punishment be graduated and proportioned to the offense.” State v.

Simpson, 488 S.W.3d 318, 322 (Tex. Crim. App. 2016) (citing U.S. Const. amend.

VIII). However, this principle “does not require strict proportionality between the

crime and the sentence.” Id. (citing Harmelin v. Michigan, 501 U.S. 957, 1001

(1991) (Kennedy, J., concurring)). Rather, only those extreme sentences considered

grossly disproportionate to the crime are forbidden. Id. (citing Ewing v. California,


                                          18
538 U.S. 11, 23 (2003) (plurality opinion)). A finding that a sentence is grossly

disproportionate has only been made in exceedingly rare and extreme cases. Id. at

322–23 (citing Lockyer v. Andrade, 538 U.S. 63, 73 (2003)). Ordinarily, “a

punishment that falls within the legislatively prescribed range, and that is based upon

the sentencer’s informed normative judgment, is unassailable on appeal.” Randall v.

State, 529 S.W.3d 566, 568 (Tex. App.—Houston [14th Dist.] 2017, no pet.); see

also Simpson, 488 S.W.3d at 323 (stating that “punishment assessed within the

statutory limits, including punishment enhanced pursuant to a habitual-offender

statute, is not excessive, cruel, or unusual”).

      In determining whether a sentence for a term of years is grossly

disproportionate to a particular crime, we consider “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, 560 U.S. at 60). Only in those rare cases in which

our initial comparison gives rise to an inference of gross disproportionality do we

then “compare the defendant’s sentence with the sentences received by other

offenders in the same jurisdiction and with the sentences imposed for the same crime

in other jurisdictions.” Id.




                                           19
C.    Analysis

      Nealy was convicted of the third-degree felony offense of harassment by a

person in a correctional facility, which is punishable by imprisonment for any term

between two and ten years. See TEX. PENAL CODE § 12.34(a). Because the jury found

that she had been convicted of a prior felony offense, Nealy’s punishment was

enhanced to that of a second-degree felony, which is punishable by imprisonment

for any term between two and twenty years. See id. §§ 12.33(a), 12.42(a).

      The jury assessed Nealy’s punishment at 3.75 years’ imprisonment, which is

at the low end of the punishment range for both second and third-degree felonies.

See generally Simpson, 488 S.W.3d at 323 (stating that “punishment assessed within

the statutory limits, including punishment enhanced pursuant to a habitual-offender

statute, is not excessive, cruel, or unusual”). With respect to the harm or threat of

harm posed to the victim, Officer Boyd testified that he could have been exposed to

an infectious disease when Nealy spit in his eye. Although Officer Boyd was not

physically harmed by the incident and did not seek medical treatment, the record

reflects that Nealy’s conduct, i.e., spitting in Officer Boyd’s face, nevertheless posed

some risk of harm to the officer. See generally Simpson, 488 S.W.3d at 323 (stating

courts consider “the severity of the sentence in light of the harm caused or threatened

to the victim”). Nealy’s criminal history, including her convictions for assaulting

Officer Velasquez and public intoxication, and her charge of resisting arrest, also


                                          20
indicate that her sentence is not grossly disproportionate to the crime she committed.

See generally Simpson, 488 S.W.3d at 323 (stating courts consider offender’s prior

adjudicated and unadjudicated offenses when determining whether sentence is

grossly disproportionate). In light of these factors, combined with the public policy

of encouraging peaceful compliance with officers in the performance of their duty,

we conclude that this is not one of the “rare cases” that gives rise to an inference of

gross disproportionality. See id. Because our initial comparison does not give rise to

an inference of gross disproportionality, we do not need to compare Nealy’s sentence

“with the sentences received by other offenders in the same jurisdiction and with the

sentences imposed for the same crime in other jurisdictions.” Id. Accordingly, we

hold that Nealy’s sentence does not violate the United States Constitution’s and the

Texas Constitution’s prohibitions against cruel and unusual punishment. See id.

      We overrule Nealy’s first issue.

                         Ineffective Assistance of Counsel

      In her third issue, Nealy argues that she received ineffective assistance of

counsel because her counsel failed to: (1) challenge the constitutionality of Penal

Code section 22.11, (2) seek dismissal of the charge against her based upon a double

jeopardy claim, (3) request that a double jeopardy instruction be included in the jury

charge, (4) offer evidence of Nealy’s conviction for the misdemeanor assault

stemming from the same altercation and argue the fundamental unfairness of the


                                          21
differentiation of the two cases, (5) request a jury instruction that the State was

required to prove that Nealy intended to cause saliva to contact Officer Boyd and

intended to assault, harass, or alarm Officer Boyd, and (6) argue that there was a

violation of the Eighth Amendment to the United States Constitution of cruel and

unusual punishment and did not argue that the punishment was disproportionate to

the offense, or request that there be an instruction in the jury charge. According to

Nealy, her counsel’s performance is deficient as a matter of law because there is

no reasonable trial strategy which could justify counsel’s conduct. See Andrews v.

State, 159 S.W.3d 98, 102 (Tex. Crim. App. 2005).

A.    Standard of Review

      The standard of review for evaluating claims of ineffective assistance of

counsel is set forth in Strickland v. Washington, 466 U.S. 668, 687 (1984). Under

the Strickland two-step analysis, a defendant must demonstrate that (1) her counsel’s

performance fell below an objective standard of reasonableness and (2) there is a

reasonable probability that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different. Id. at 687–88, 694; Nava v. State, 415 S.W.3d

289, 307 (Tex. Crim. App. 2013). An appellant bears the burden of proving his

claims by a preponderance of the evidence. Jackson v. State, 973 S.W.2d 954, 956

(Tex. Crim. App. 1998). Failure to make the required showing of either deficient




                                          22
performance or sufficient prejudice defeats the ineffectiveness claim. See Williams

v. State, 301 S.W.3d 675, 687 (Tex. Crim. App. 2009).

      Appellate review of counsel’s representation is highly deferential; we must

“indulge in a strong presumption that counsel’s conduct was not deficient.” Nava,

415 S.W.3d at 307–08; see Strickland, 466 U.S. at 689. To overcome this

presumption, claims of ineffective assistance of counsel must be firmly founded in

the record and affirmatively demonstrate the alleged ineffectiveness. See Salinas v.

State, 163 S.W.3d 734, 740 (Tex. Crim. App. 2005). However, a reviewing court

will rarely be in a position to fairly evaluate the merits of an ineffective assistance

claim on direct appeal because the trial record is usually undeveloped and inadequate

to reflect the motives behind trial counsel’s actions. See id. In fact, trial counsel

should have the opportunity to explain his or her actions before being condemned as

ineffective. See Rylander v. State, 101 S.W.3d 107, 111 (Tex. Crim. App. 2003).

Therefore, when the record is silent as to trial counsel’s strategy, we assume that

counsel had a sound strategy, unless the challenged conduct was “so outrageous that

no competent attorney would have engaged in it.” Goodspeed v. State, 187 S.W.3d

390, 392 (Tex. Crim. App. 2005); see also Lopez v. State, 343 S.W.3d 137, 143 (Tex.

Crim. App. 2011).




                                          23
B.    Analysis

      Nealy argues that her counsel’s conduct was deficient because he “failed to

challenge the constitutionality” of section 22.11, thereby failing to preserve this

issue for appellate review. Nealy does not cite to an appellate opinion in which a

court has sustained the constitutional challenge she raises on appeal with respect to

section 22.11, nor have we found any such opinions. Thus, her constitutional

challenge raises an unsettled legal question. See State v. Bennett, 415 S.W.3d 867,

869 (Tex. Crim. App. 2013); Enard v. State, 513 S.W.3d 206, 216 (Tex. App.—

Houston [14th Dist.] 2016, pet. ref’d). The failure to preserve error as to unsettled

legal questions does not constitute ineffective assistance of counsel. See Bennett,

415 S.W.3d at 868–69; Enard, 513 S.W.3d at 216; see also Perez v. State, No. 07-

12-00432-CR, 2013 WL 6908955, at *3 (Tex. App.—Amarillo Dec. 18, 2013, no

pet.) (mem. op., not designated for publication) (relying on Bennett and holding trial

counsel did not render ineffective assistance by failing to object to constitutionality

of statute because it was unsettled legal issue).

      Nealy further contends that her counsel’s conduct was deficient because he

failed to seek dismissal of the charge against her based on double jeopardy and failed

to request that a double jeopardy instruction be included in the jury charge. As

previously discussed, Nealy cannot demonstrate that the trial court would have erred

by refusing to quash the indictment based on double jeopardy because the two


                                          24
offenses are not factually the same and, therefore, Nealy was not being prosecuted

for the same offense twice. See Ex parte Chandler, 182 S.W.3d 350, 356 (Tex. Crim.

App. 2005) (holding trial counsel is not ineffective for failing to make frivolous

arguments or undertake unreasonable courses of action, such as requesting jury

instruction that defendant is not entitled to receive); see also Castillo, 469 S.W.3d

at 172 (stating assaults on different victims represent factually separate offenses).

Although she asserts that her counsel should have requested a jury instruction on

double jeopardy, she has not identified a factual dispute relating to her double

jeopardy claim that needed to be resolved by the jury. Therefore, Nealy has not

established by a preponderance of the evidence that trial counsel’s representation

fell below the objective standard of reasonableness by not requesting an instruction.

See Strickland, 466 U.S. at 689. Furthermore, given the undisputed fact that the

misdemeanor and felony charges allege two different victims, i.e., Officer Velasquez

and Officer Boyd, Neely has not shown that there is a reasonable probability that,

but for counsel’s omission, the result of the proceeding would have been different.

Strickland, 466 U.S. at 694; see also Chandler, 182 S.W.3d at 356.

      Nealy also argues that her counsel was ineffective because he “failed to offer

evidence of Nealy’s conviction for the misdemeanor assault stemming from the

same altercation and argue that fundamental unfairness of the differentiation of the

two cases.” Trial counsel’s decision whether to offer evidence of Nealy’s


                                         25
misdemeanor conviction for spitting on Officer Velasquez falls squarely within the

parameters of trial strategy. See generally Martin v. State, 265 S.W.3d 435, 443

(Tex. App.—Houston [1st Dist.] 2007, no pet.) (“This court has held that eliciting

testimony from the accused as to his own prior convictions can be a matter of sound

trial strategy. . . .”). Because counsel has not been given an opportunity to defend

himself or explain his decision not to offer this evidence, we must assume that

counsel had a sound strategy, unless the challenged conduct was “so outrageous that

no competent attorney would have engaged in it.” Goodspeed, 187 S.W.3d at 392.

It is apparent from the record that one of Nealy’s defensive strategies was that she

did not spit on Officer Boyd and there was no evidence proving otherwise because

the videos only showed her spitting on the window. Nealy not only denied spitting

on Officer Boyd, however, she also testified that she did not spit on any other person.

Evidence that Nealy had previously pleaded “no contest” to spitting on Officer

Velasquez during the same incident would arguably have undermined her defense

and we cannot say that trial counsel’s decision not to offer this evidence was “so

outrageous that no competent attorney would have engaged in it.” Goodspeed, 187

S.W.3d at 392.

      Nealy argues that her counsel’s conduct was deficient because he failed to

request a jury instruction that the State was required to prove that Nealy intended to

cause saliva to contact Officer Boyd and intended to assault, harass, or alarm Officer


                                          26
Boyd. “To demonstrate deficient performance based on the failure to request a jury

instruction, an appellant must show that he was entitled to the instruction.”

Washington v. State, 417 S.W.3d 713, 726 (Tex. App.—Houston [14th Dist.] 2013,

pet. ref’d) (citing Fuentes v. State, 991 S.W.2d 267, 272 (Tex. Crim. App. 1999)).

As previous discussed, the State was not required to prove that Nealy intended to

spit on Officer Boyd; the State was only required to prove that Nealy intended “to

assault, harass, or alarm” Officer Boyd. See TEX. PENAL CODE § 22.11(a)(1). Saliva

was the means to that end. Because Nealy was not entitled to an instruction that the

State was required to prove that Nealy intended to cause saliva to contact Officer

Boyd, trial counsel’s performance was not deficient based on his failure to request

such an instruction. See Washington, 417 S.W.3d at 726.

      Nealy also argues that her counsel was deficient because he failed to argue

that her 3.75-year sentence violates the United States Constitution’s and the Texas

Constitution’s prohibitions against cruel and unusual punishment, argue that the

punishment was disproportionate to the offense, or request an instruction in the jury

charge. See U.S. CONST. amend. VIII; TEX. CONST. art. I, § 13. As previously

discussed, the trial court would not have erred by overruling an objection that her

sentence constituted cruel and unusual punishment. Therefore, Nealy has not

established by a preponderance of the evidence that trial counsel’s representation

fell below the objective standard of reasonableness by not objecting to Nealy’s


                                         27
punishment on this basis or otherwise presenting this issue to the jury. See Jagaroo

v. State, 180 S.W.3d 793, 801 (Tex. App.—Houston [14th Dist.] 2005, pet. ref’d)

(explaining that defendant must show that trial court would have erred in overruling

counsel’s objection to punishment as cruel and unusual before court could conclude

counsel was ineffective for failure to make such objection); see also Chandler, 182

S.W.3d at 356.

      We overrule Nealy’s third issue.

                                    Conclusion

      We affirm the trial court’s judgment.




                                              Russell Lloyd
                                              Justice


Panel consists of Justices Lloyd, Kelly, and Hightower.




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