MODIFY and AFFIRM; and Opinion Filed June 21, 2019.




                                             In The
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                      No. 05-18-01114-CR

                                 FRANK DODD, Appellant
                                          V.
                              THE STATE OF TEXAS, Appellee

                      On Appeal from the 265th Judicial District Court
                                   Dallas County, Texas
                           Trial Court Cause No. F-1759117-R

                             MEMORANDUM OPINION
                          Before Justices Bridges, Brown, and Nowell
                                   Opinion by Justice Brown
       Following a jury trial, Frank Dodd appeals his conviction for aggravated assault with a

deadly weapon involving family violence. In four issues, appellant contends the State did not

prove the offense occurred in Dallas County, the trial court erred by violating his common-law

right to allocution, and his punishment violates the Eighth Amendment. We modify the trial

court’s judgment to include a finding of family violence and affirm as modified.

       Appellant was charged with first-degree aggravated assault under penal code section

22.02(b)(1). The indictment alleged that on or about October 27, 2017, in Dallas County, appellant

intentionally, knowingly, and recklessly caused serious bodily injury to David Blair, by shooting

Blair with a firearm and alleged appellant used a deadly weapon during the commission of the
offense. In addition, the indictment alleged appellant was a member of Blair’s family and

household.

       Blair, appellant’s brother, testified that in October 2017, he was living with appellant at

appellant’s home in Oak Cliff in Dallas County. On October 24, Blair was home making some

food for his young son. The two men argued because appellant thought Blair was making too

much noise. Appellant left the room and returned with a gun. Appellant fired three shots. Blair

was hit twice, once in the chest and once in the buttocks. Blair’s son, who was age eight when he

testified at trial, witnessed the shooting. Dallas Police Detective Mark Meltabarger investigated

the case. He reviewed photographs of the crime scene and witness interviews. The detective

testified that the shooting occurred in Dallas County, Texas.

       Appellant testified that he shot Blair to protect himself after Blair came at him with a knife.

But the jury rejected appellant’s claim of self-defense. It found appellant guilty as charged and

assessed his punishment at ten years confinement.

       In his first issue, appellant contends the trial court erred in denying his motion for directed

verdict. In issue two, he challenges the legal sufficiency of the evidence. Appellant’s argument

under both issues is that he is entitled to an acquittal because the State failed to prove he committed

the offense in Dallas County.

       The State bears the burden to prove venue by a preponderance of the evidence. TEX. CODE

CRIM. PROC. ANN. art. 13.17. Venue is not an element of the offense under Texas law. Schmutz

v. State, 440 S.W.3d 29, 34 (Tex. Crim. App. 2014) (“element” is fact legally required for fact

finder to convict person of substantive offense). As such, failure to prove venue does not implicate

the sufficiency of the evidence nor does it require acquittal. Id. at 35. Any failure to prove venue

as alleged is non-constitutional error subject to a harm analysis under rule of appellate procedure

44.2(b). Id. at 37, 39.

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        Appellant contends the State’s witnesses did not testify that the shooting took place in

Dallas County. To the contrary, as discussed above, both Blair and Detective Meltabarger

provided evidence the offense occurred in Dallas County.             The State proved venue by a

preponderance of the evidence. We overrule appellant’s first and second issues.

        In his third issue, appellant contends the trial court violated his common-law right to

allocution. “Allocution” refers to a trial court’s inquiry into whether a criminal defendant wishes

to “speak in mitigation of the sentence to be imposed.” Eisen v. State, 40 S.W.3d 628, 631–32

(Tex. App.—Waco 2001, pet. ref’d). The code of criminal procedure requires a trial judge to ask

before pronouncing sentence if a defendant has “anything to say why the sentence should not be

pronounced against him.” TEX. CODE CRIM. PROC. ANN. art. 42.07. The trial court complied with

article 42.07 in this case. Appellant argues there is a common-law right of allocution that is

broader than the statutory right. He would require the trial court to additionally inquire if he wished

to exercise his common-law right of allocution. Appellant did not make any objection to the trial

court’s failure to make this inquiry. To preserve a complaint about the right to allocution, a

defendant must raise the complaint in the trial court. McClintick v. State, 508 S.W.2d 616, 617–

18 (Tex. Crim. App. 1974) (op. on reh’g); see TEX. R. APP. P. 33.1(a). By failing to object in the

trial court, appellant has not preserved this issue for appellate review. We overrule appellant’s

third issue.

        In his fourth issue, appellant contends the trial court imposed a grossly disproportionate

punishment in violation of the Eighth Amendment. Appellant did not object to his sentence at the

time it was imposed or in his motion for new trial. See TEX. R. APP. P. 33.1(a)(1). Even

constitutional rights, including the right to be free from cruel and unusual punishment, may be

waived. Davis v. State, 323 S.W.3d 190, 196 (Tex. App.—Dallas 2008, pet. ref’d); see Rhoades




                                                 –3–
v. State, 934 S.W.2d 113, 120 (Tex. Crim. App. 1996).         Because appellant failed to raise this

complaint in the trial court, he has not preserved this issue for appellate review.

       Even if we consider the merits of appellant’s fourth issue, his argument fails. He argues

that his ten-year sentence is grossly disproportionate to the crime. The concept of proportionality

is embodied in the Eighth Amendment’s ban on cruel and unusual punishment and requires that

punishment be graduated and proportioned to the offense. State v. Simpson, 488 S.W.3d 318, 322

(Tex. Crim. App. 2016); Foster v. State, 525 S.W.3d 898, 910 (Tex. App.—Dallas 2017, pet.

ref’d). Generally, punishment assessed within the statutory limits is not excessive, cruel, or

unusual.   Foster, 525 S.W.3d at 910.        A sentence is grossly disproportionate only in the

“exceedingly rare or extreme case.” Simpson, 488 S.W.3d at 322–23 (noting that United States

Supreme court has held only twice that non-capital sentence imposed on adult was constitutionally

disproportionate). To determine whether a sentence is grossly disproportionate for a particular

defendant’s crime, we judge the severity of the sentence in light of the harm caused or threatened

to the victim, the culpability of the offender, and the offender’s prior adjudicated and unadjudicated

offenses. Id.; Foster, 525 S.W.3d at 910. In the rare case in which this threshold comparison leads

to an inference of gross disproportionality, we then analyze how the defendant’s sentence

compares to the sentences of other offenders in the same and other jurisdictions. Simpson, 488

S.W.3d at 323. If this comparative analysis validates an initial judgment that the sentence is

grossly disproportionate, the sentence is cruel and unusual. Id.

       In this case, appellant was convicted of a first-degree felony, aggravated assault with a

deadly weapon involving family violence. See TEX. PENAL CODE ANN. § 22.02(b)(1). His ten-

year sentence fell well within, and at the low end of, the range for the offense of five to ninety-

nine years. See id. §12.32(a). Appellant shot his brother in front of the brother’s young son.

Blair’s pelvis was fractured and he still has health issues as a result of the bullet that remains

                                                 –4–
lodged there. There was evidence his son was traumatized by the event. Appellant’s sentence

does not raise an inference of gross disproportionality, even for a first offense. We overrule

appellant’s fourth issue.

       In a cross point, the State asks this Court to modify the trial court’s judgment to include a

finding of family violence. Article 42.013 of the code of criminal procedure provides that in the

trial of an offense under Title 5 of the penal code, which includes aggravated assault, if the court

determines that the offense involved family violence, as defined by section 71.004 of the family

code, “the court shall make an affirmative finding of that fact and enter the affirmative finding in

the judgment of the case.” TEX. CODE CRIM. PROC. ANN. art. 42.013; see TEX. PENAL CODE ANN.

§§ 19.01-22.12 (“Offenses Against the Person”). The definition of “family violence” in section

71.004 includes “an act by a member of a family or household against another member of the

family or household that is intended to result in physical harm, bodily injury, assault, or sexual

assault.” TEX. FAM. CODE ANN. § 71.004.

       The indictment in this case alleged that appellant committed aggravated assault with a

deadly weapon and that appellant was a member of the complainant’s family and household. The

evidence was undisputed that appellant and the complainant Blair were brothers and lived in the

same house at the time of the offense. The jury found appellant guilty as charged in the indictment.

       On this record, we conclude that the trial court was statutorily obligated to include an

affirmative finding of family violence in the judgment. See Butler v. State, 189 S.W.3d 299, 302

(Tex. Crim. App. 2006). This Court may modify the trial court’s judgment to make the record

speak the truth when it has the necessary data and information to do so. See TEX. R. APP. P.

43.2(b); Bigley v. State, 865 S.W.2d 26, 27–8 (Tex. Crim. App. 1993); Asberry v. State, 813

S.W.2d 526, 529 (Tex. App.—Dallas 1991, pet. ref’d). Accordingly, we modify the trial court’s

judgment to include an affirmative finding of family violence.

                                                –5–
       As modified, we affirm the trial court’s judgment.




                                                 /Ada Brown/
                                                 ADA BROWN
                                                 JUSTICE




Do Not Publish
TEX. R. APP. P. 47.2(b).

181114F.U05




                                              –6–
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                       JUDGMENT

 FRANK DODD, Appellant                                On Appeal from the 265th Judicial District
                                                      Court, Dallas County, Texas
 No. 05-18-01114-CR         V.                        Trial Court Cause No. F-1759117-R.
                                                      Opinion delivered by Justice Brown,
 THE STATE OF TEXAS, Appellee                         Justices Bridges and Nowell participating.

        Based on the Court’s opinion of this date, the judgment of the trial court is MODIFIED to
include an affirmative finding of family violence under the caption “Furthermore, the following
special findings or orders apply.”

       As modified, the judgment is AFFIRMED.


Judgment entered this 21st day of June, 2019.




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