                       COURT OF APPEALS
                        SECOND DISTRICT OF TEXAS
                             FORT WORTH

                            NO. 02-16-00152-CR
                            NO. 02-16-00153-CR
                            NO. 02-16-00154-CR
                            NO. 02-16-00155-CR


CHARLES RAYMOND SPRAGUE                                          APPELLANT

                                      V.

THE STATE OF TEXAS                                                     STATE


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     FROM CRIMINAL DISTRICT COURT NO. 3 OF TARRANT COUNTY
      TRIAL COURT NOS. 1410892D, 1412622D, 1412640D, 1412641D

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                       MEMORANDUM OPINION1

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                               I. INTRODUCTION

      Appellant Charles Raymond Sprague appeals his convictions for two

counts of violating a civil commitment order and one count each of kidnapping,

sexual assault, and robbery by threats. In two issues, Sprague argues that one

      1
      See Tex. R. App. P. 47.4.
of his counts for violating a civil commitment order must be vacated and that his

sentences are unconstitutionally disproportionate.      We will vacate one of

Sprague’s convictions for violating a civil commitment order and affirm the

remainder of the trial court’s judgments.

                                 II. BACKGROUND

      After being adjudged a sexually violent predator in accordance with Texas

Health and Safety Code section 841.003, Sprague was civilly committed to

reside in a halfway house on April 6, 2010, while undergoing treatment. See

Tex. Health & Safety Code Ann. § 841.003 (West Supp. 2016). Conditions of his

treatment required Sprague to wear a GPS ankle monitor, and he was not

permitted to leave the halfway house without permission.

      On April 15, 2015, Sprague cut off his GPS tracking bracelet and left the

facility without notice and without permission. Hours later he approached “Lisa

Thomas”2 in the parking lot of her place of work, showed her a pistol in the

backpack he was holding,3 and announced, “[T]his [is] a carjacking.” Sprague

ordered Thomas into her SUV, got inside the vehicle, locked the doors, and then

drove to a parking lot in front of a vacant building a few blocks away. There, he

ordered Thomas to take off her pants and then commanded her to perform oral


      2
       Lisa Thomas is the pseudonym given the complainant at trial.           For
consistency, we will use the same pseudonym.

      The record indicates that the pistol was an “air pistol” that appeared to be
      3

a handgun.


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sex on him, threatening to kill her if she did not but assuring her that he would

release her if she caused him to ejaculate.      Through tears and pleas that

Sprague let her go, Thomas complied with Sprague’s demands. During this time,

Sprague also digitally penetrated Thomas.

       Shortly after Sprague ejaculated, he handed her purse to her and let her

out of the vehicle. Thomas fled, flagged down a passing car, and reported the

assault to the police. That evening, Thomas recognized Sprague as her attacker

when she saw a news report that he had escaped from the halfway house.

Later, tests determined that the DNA in semen recovered from Thomas’s hand

and pants matched Sprague’s to within 1 in 19 quintillion, an “exceptionally rare

profile.”

       Enforcement officers located Sprague two days later at the WinStar Casino

and Hotel in Oklahoma, where he had registered as a guest.               Officers

apprehended him there without incident. As he was taken into custody, Sprague

was holding the keys to Thomas’s car in his hand, and the vehicle was later

found in the hotel parking lot.

       The State charged Sprague with two counts of violating a civil commitment

order and one count each of kidnapping, sexual assault, and robbery by threats.

After a trial, a jury found Sprague guilty of all charges, found the habitual-

offender notice to be true, and sentenced him to life imprisonment on all five

counts. The trial court rendered judgment accordingly, ordering the sentences to

run concurrently. This appeal followed.


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                                  III. DISCUSSION

         A.     Double Jeopardy and Multiple Civil Commitment Violations

         In his first issue, Sprague argues that one of his two convictions for

violating his civil commitment order must be vacated because multiple

convictions for violations of a single civil commitment order are barred under his

double jeopardy rights. The State concedes this point, and we agree with the

State.

         The Fifth Amendment’s Double Jeopardy Clause prohibits a second trial

after the accused has already been convicted or acquitted of that crime and

forbids multiple punishments for the same offense in a single prosecution. U.S.

Const. amend. V; see Speights v. State, 464 S.W.3d 719, 722 (Tex. Crim. App.

2015). The Texas Court of Criminal Appeals has held that a civil commitment

order violation is a circumstances-surrounding-the-conduct crime. Stevenson v.

State, 499 S.W.3d 842, 851 (Tex. Crim. App. 2016). As such, imposition of

multiple punishments for violating a civil commitment order violates a defendant’s

double-jeopardy rights. Id. The remedy is to vacate the superfluous conviction.

See id. at 852 (“While the State could have alleged that Stevenson violated the

civil-commitment order in one of three ways, it was not entitled to three separate

judgments. We therefore vacate Stevenson’s convictions in counts one and

three.”)      Thus, we sustain Sprague’s first issue and vacate his conviction

predicated on the second count of violating a civil commitment order in trial court

cause number 1410892D.


                                        4
      B.     Proportionality of Sprague’s Sentences

      In his second point, Sprague argues that the life sentences he received for

each conviction are disproportionate to the offenses and thus violate his rights

under the United States and Texas Constitutions. See U.S. Const. amend. VIII,

XIV; Tex. Const. art. I, § 13.     The State argues that Sprague has failed to

preserve this error for our review. We agree with the State.

      To preserve for appellate review a complaint that a sentence is grossly

disproportionate, constituting cruel and unusual punishment, a defendant must

present to the trial court a timely request, objection, or motion stating the specific

grounds for the ruling desired. Tex. R. App. P. 33.1(a); Rhoades v. State, 934

S.W.2d 113, 120 (Tex. Crim. App. 1996) (holding complaint of cruel and unusual

punishment under Texas Constitution was waived because defendant presented

his argument for first time on appeal); Noland v. State, 264 S.W.3d 144, 151–52

(Tex. App.—Houston [1st Dist.] 2007, pet. ref’d) (holding that when appellant

failed to object to his sentence at the punishment hearing or to complain about it

in his motion for new trial, he failed to preserve his Eighth Amendment complaint

that the punishment assessed was “grossly disproportionate and oppressive”);

see also Mercado v. State, 718 S.W.2d 291, 296 (Tex. Crim. App. 1986) (stating

that as a general rule, appellant may not assert error pertaining to his sentence

or punishment when he failed to object or otherwise raise such error in the trial

court).




                                          5
      Because Sprague did not raise his complaint about the alleged

disproportionality of his sentences at the time they were imposed or in a motion

for new trial, he preserved nothing for our review. See Noland, 264 S.W.3d at

151–52; see also Acosta v. State, 160 S.W.3d 204, 211 (Tex. App.—Fort Worth

2005, no pet.) (holding that defendant forfeited his Texas constitution-based

complaint that his sentence was grossly disproportionate); see also Cisneros v.

State, No. 02-06-103-CR, 2007 WL 80002, at *1 (Tex. App.—Fort Worth Jan. 11,

2007, pet. ref’d) (mem. op., not designated for publication) (collecting cases).

We overrule Sprague’s second issue.

                               IV. CONCLUSION

      Having sustained Sprague’s first issue and having overruled his second,

we vacate his conviction predicated on Count Two of violating a civil commitment

order in trial court cause number 1410892D, and we affirm the remainder of the

trial court’s judgments.




                                                 /s/ Bill Meier
                                                 BILL MEIER
                                                 JUSTICE

PANEL: LIVINGSTON, C.J.; WALKER and MEIER, JJ.

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

DELIVERED: April 27, 2017



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