                       COURT OF APPEALS
                        SECOND DISTRICT OF TEXAS
                             FORT WORTH

                            NO. 02-14-00241-CR


JAWAUN DOMINIQUE NEELEY                                         APPELLANT

                                        V.

THE STATE OF TEXAS                                                    STATE


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         FROM THE 432ND DISTRICT COURT OF TARRANT COUNTY
                     TRIAL COURT NO. 1302105D

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                       MEMORANDUM OPINION1

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                                  I. Introduction

     Appellant Jawaun Dominique Neeley pled guilty to aggravated assault with

a deadly weapon as charged in the indictment,2 and a jury assessed his

     1
      See Tex. R. App. P. 47.4.
     2
       The State charged Neeley with having intentionally, knowingly, or
recklessly caused bodily injury to Mitchell Washington by shooting him with a
firearm.
punishment at fourteen years’ confinement and a $10,000 fine. See Tex. Penal

Code Ann. § 22.02(a)(2), (b) (West 2011); see also id. § 12.33 (West 2011)

(stating that second-degree felony sentencing range is two to twenty years’

confinement and may include a fine not to exceed $10,000). In a single issue,

Neeley complains that his sentence is grossly disproportionate to the offense in

light of the facts and evidence presented at his punishment trial. We affirm.

                                  II. Discussion

A. Presentment

      Neeley did not object to his sentence in the trial court. Instead, he filed a

motion for new trial containing his proportionality complaint. When, as here, an

appellant does not object to his sentence when it is imposed, he must complain

in a motion for new trial and present that motion to the trial court, or he fails to

preserve the complaint for appellate review.3 Means v. State, 347 S.W.3d 873,

874 (Tex. App.—Fort Worth 2011, no pet.); Laboriel-Guity v. State, 336 S.W.3d




      3
        Generally, to preserve a complaint for our review, a party must have
presented to the trial court a timely request, objection, or motion that states the
specific grounds for the desired ruling if they are not apparent from the context of
the request, objection, or motion. Tex. R. App. P. 33.1(a)(1); Everitt v. State, 407
S.W.3d 259, 262–63 (Tex. Crim. App. 2013); Sanchez v. State, 418 S.W.3d 302,
306 (Tex. App.—Fort Worth 2013, pet. ref’d). Further, the trial court must have
ruled on the request, objection, or motion, either expressly or implicitly, or the
complaining party must have objected to the trial court’s refusal to rule. Tex. R.
App. P. 33.1(a)(2); Everitt, 407 S.W.3d at 263. A reviewing court should not
address the merits of an issue that has not been preserved for appeal. Ford v.
State, 305 S.W.3d 530, 532 (Tex. Crim. App. 2009).


                                         2
754, 756 (Tex. App.—Fort Worth 2011, pet. ref’d); Kim v. State, 283 S.W.3d 473,

475 (Tex. App.—Fort Worth 2009, pet. ref’d).

      Rule of appellate procedure 21.6, “Time to Present,” generally requires a

defendant to “present” a motion for new trial to the trial court “within 10 days of

filing it.” Tex. R. App. P. 21.6. The presentment requirement means that “[t]he

defendant must put the trial judge on actual notice that he desires the judge to

take some action, such as making a ruling or holding a hearing, on his motion for

new trial.” Gardner v. State, 306 S.W.3d 274, 305 (Tex. Crim. App. 2009), cert.

denied, 562 U.S. 850 (2010). Presentment must be apparent from the record

and “may be shown by such proof as the judge’s signature or notation on the

motion or proposed order, or an entry on the docket sheet showing presentment

or setting a hearing date.” Id. The defendant bears the burden of ensuring this

notation or setting a hearing. Burrus v. State, 266 S.W.3d 107, 115 (Tex. App.—

Fort Worth 2008, no pet.).     A statement in a motion for new trial entitled,

“certificate of presentment,” with a notation on the trial court’s docket sheet

stating that the motion for new trial was filed, is insufficient to establish

presentment under rule 26.1. Id. Likewise, a “certificate of presentment” that

states that a copy of the motion would be hand-delivered to the trial court is

insufficient to show that presentment actually occurred without additional

documentary evidence or a notation that the trial judge personally received a

copy of it. Gardner, 306 S.W.3d at 305.




                                          3
      Here, a handwritten notation on the trial court’s docket sheet dated June

16, 2014 states: “Motion for New Trial; cc: State,” but the motion itself does not

contain a signature or initials by the trial judge. The motion for new trial did

include a proposed order to set the motion for a hearing, but that order was not

completed, nor does the docket sheet reflect that a hearing was set or held on

the motion.4 See Burrus, 266 S.W.3d at 115 (holding no presentment when the

record showed no ruling on the motion, no proposed order containing the judge’s

signature or notation, and no notation on the docket sheet of a hearing date set

on the motion); Hernandez v. State, 84 S.W.3d 26, 31–32 (Tex. App.—

Texarkana 2002, pet. ref’d) (holding no presentment when docket sheet showed

only the filing of the motion and record did not reflect actual notice to the trial

court); see also Richardson v. State, 328 S.W.3d 61, 72 (Tex. App.—Fort Worth

2010, pet. ref’d) (holding that disproportionate-sentence complaint was not

preserved when record showed no presentment in the form of an entry on the

trial court’s docket sheet regarding the motion, no hearing set or held, no

signature by the judge on the motion, and no indication that the trial court had

actual knowledge that the motion for new trial had been filed); cf. Lawrence v.

State, 420 S.W.3d 329, 333 (Tex. App.—Fort Worth 2014, pet. ref’d) (concluding

that appellant preserved his excessive sentence complaint when his pro se

      4
        Although Neeley’s counsel asserts in his appellate brief that he delivered
a file-stamped copy of the motion to the drop box located in the trial court
coordinator’s office, we may not consider factual assertions that are outside the
record. See Whitehead v. State, 130 S.W.3d 866, 872 (Tex. Crim. App. 2004).


                                        4
motion for new trial contained a handwritten notation with the trial judge’s initials

and the docket sheet contained a stamped entry stating that the motion for new

trial was filed and sent to the State and court of appeals). We hold that under

these circumstances, Neeley has not complied with rule 21.6’s presentment

requirement.

B. Proportionality

      Even if Neeley’s complaint had been preserved, punishment assessed

within the permitted statutory range is generally not subject to a challenge for

excessiveness unless it is grossly disproportionate to the offense committed.

See Lawrence, 420 S.W.3d at 333. To address a proportionality claim, we must

first compare the gravity of the offense committed against the sentence’s

severity. See Moore v. State, 54 S.W.3d 529, 542 (Tex. App.—Fort Worth 2001,

pet. ref’d) (citing Solem v. Helm, 463 U.S. 277, 291–92, 103 S. Ct. 3001, 3010

(1983); McGruder v. Puckett, 954 F.2d 313, 316 (5th Cir.), cert. denied, 506 U.S.

849 (1992)). Only if we determine that the sentence is grossly disproportionate

to the offense do we need to consider whether the sentence is comparable to

sentences imposed upon other criminals in the same or other jurisdictions. Id.

      1. Evidence

      Neeley, who was twenty-two years old at the time of the trial, shot his

mother’s long-term boyfriend Mitchell Washington in the back with a rifle after

they argued on the morning of October 24, 2012. The jury saw the rifle and

photos of Washington’s gunshot wound, listened to a recording of the 911 call,


                                         5
and heard about Neeley’s background, including earlier interactions with

Washington, previous incarcerations, the events of that morning, and his

behavior while incarcerated awaiting trial.

             a. Neeley’s Background

      Neeley was first incarcerated in Indiana when he was approximately ten

years old, and, other than a brief probation at age fourteen, he remained more-

or-less incarcerated until he turned fifteen years old. Although most of his

troubles appeared to involve anger management issues, Neeley testified at trial

that he no longer had anger problems.

      During his youth Neeley had also associated with a gang, Piru, in both

Indiana and California, but he denied associating with any gang once he moved

to Texas. His family moved to Texas in 2008, and in 2009, Washington moved

into the family’s home.

      Neeley’s mother and sister testified that after Neeley arrived in Texas, he

dropped out of high school. While he started to take some GED courses, he

never completed his GED. Instead, according to his mother, he just took jobs

“here and there.”

      Neeley’s twenty-year-old sister testified that from 2008 to October 2012,

she had never known Neeley to have a job. Neeley testified that he earned

money by selling marijuana in Indiana and then in Texas, and he could make

$1,000 to $1,500 in two weeks in that endeavor. How much he sold depended

on whether he had a bill to pay or needed something. Neeley said that he would


                                         6
smoke some of the inventory, and then he might use half of the proceeds to pay

a bill and the other half to buy clothes or other things he needed. He did earn

money from other jobs he held from time to time as well, specifically as a worker

for the City of Grand Prairie and as a salesman for Entrust Energy. During those

periods of employment, Neeley testified, he did not have to sell drugs.5

      Neeley stated that he started working for the City of Grand Prairie in 2009,

stopped working for the city in 2010, and then went back to work for the city in

2011. Perhaps not coincidentally, these gaps in employment coincide with a

period of criminal activity on Neeley’s part. In 2010, Neeley was convicted for

two class B misdemeanor terroristic-threat offenses, to which he pled guilty in

exchange for sixty-five days’ confinement, and in 2011, he pled guilty to a class A

misdemeanor failure-to-identify offense in exchange for twenty-eight days’

confinement.

      Neeley’s 2010 convictions arose from an incident involving a 2:01-a.m. bar

fight called into the police first as a large disturbance involving multiple persons

and then to report an individual with a firearm. Two witnesses at the scene

identified Neeley to the police, and Neeley was charged with having threatened

to murder them or commit an aggravated assault of them. Neeley testified that

the fighting began when someone shoved him and he pushed back. After that

individual spat on him, Neeley said that he tossed him into a car. Someone else

      5
        Neely had been working for Entrust Energy, selling electricity door-to-door
until he was arrested in this case.


                                         7
punched Neeley, and before he started fighting, someone said, “Go get the gun

out of the trunk.” Neeley said that when he overheard this, he retrieved his own

gun, which was not loaded and which did not work, and while he was fighting, the

gun fell out of his pocket. Neeley said he then picked up the gun and pointed it

when “homey rush [him].” When the man came forward, Neeley hit him with the

gun.

       Neeley was detained by officers who found a handgun (a .22 small caliber

revolver) in his vehicle. Neeley told the police that the gun had fallen out of his

pants when he was fighting and that he might have hit someone with the gun but

did not mean to point it at anyone. He explained to the officers that the gun’s pin

was broken, preventing it from being loaded, and that he just used the gun to

scare people.

       Neeley’s 2011 conviction also arose from an incident involving a fight with

a possible gun that occurred after midnight. During the investigation after the

police were called to the scene, a handgun and a .20 gauge shotgun were found

in the vehicle Neeley identified as his. Neeley admitted that initially he gave the

police a false name, but that two minutes later he gave them his correct name.

He denied allegations that he told Derrick Williams, “We’re going to get a gun

and shoot you,” and he also denied that he had participated in the fight in front of

Williams’s house.

       While the 2010 terroristic-threat and 2011 failure-to-identify misdemeanor

convictions may appear to be unrelated, isolated incidents, the jury could have


                                         8
reasonably concluded that the convictions revealed a common theme—

escalating early morning altercations that involve the use or threat of firearms.

              b. The Shooting

       Like the 2010 and 2011 incidents, this case also shares an early-morning

argument involving a firearm. According to Neeley, the events actually began a

few days earlier after Washington wrote a threatening rap song about him and

threatened to either kill Neeley or have someone else kill him. According to

Neeley, Washington had been abusive to Neeley’s mother in the past and had

been violent with others as well.         Neeley’s mother also testified about

Washington’s abusive behavior, relating an occasion when Washington had

become intoxicated, “smacked and poked [her] in the face,” and used foul

language.6

       Neeley did not live with his mother and Washington. According to his

sister, while he stayed at their house once or twice a week, he usually lived with

his friend Dre. Neeley testified that he had been living in Oklahoma with his

girlfriend.

       On the day of the shooting, Neeley’s sister let Neeley into the house

around 4:00 a.m. A few hours later, Neeley and Washington quarreled after


       6
       Neeley’s mother testified that when Washington passed out on that
occasion, he began having trouble breathing. Neeley told his mother to call 911
and held Washington while she performed CPR as instructed by the 911
operator. Neeley testified that he held Washington’s head while his mother
performed CPR because he “wasn’t about to do all that.”


                                         9
Washington accused Neeley of staring at him. Neeley’s mother tried to calm

them, and when Neeley went outside to his vehicle, his mother followed.

      Washington followed them outside and began threatening Neeley. During

the encounter, Washington became aggressive,7 using foul language and calling

Neeley and his mother derogatory names.

      Neeley decided to shoot Washington,8 so he removed a rifle from his

vehicle and fired the weapon at Washington, hitting him in the back from around

ten feet away.9 At the moment Neeley discharged the weapon, Neeley’s sister

was standing just out of arm’s reach of Washington and their mother was in

between Neeley and Washington, such that Neeley could have hit either of them

instead of his intended target. After the shooting, Neeley put the rifle back into

his vehicle, apologized to his brother, his sister, his mother, and Washington, and

drove away.10   His sister testified that there was blood everywhere after the

shooting.

      7
       Neeley’s sister and mother both opined that Washington was an
aggressive individual and that he had a reputation as such. Neeley’s mother said
that Neeley shot Washington in defense against Washington’s verbal aggression.
      8
       Neeley admitted at trial that he intended to shoot Washington, not just to
scare him, when he got the rifle out of the vehicle.
      9
      Neeley explained that he brought out the gun because he was worried
about what Washington was going to do to him. Neeley’s mother said that she
was not surprised that there was a rifle in Neeley’s vehicle because “everybody”
knew that he had it.
      10
        Neeley’s mother said that Neeley paced back and forth and started
crying before he left.


                                        10
      Neeley said he was on his way to the police station when a police officer

pulled him over. Somewhere along the way, he removed the shell casing and

threw it into a ditch. The police officer who stopped Neeley’s vehicle testified that

Neeley did not attempt to evade arrest and was cooperative. Neeley told the

officer that he was the one they were looking for, that he shot Washington, and

that the rifle was in the back seat. Neeley testified that he sincerely regretted his

action and that he cried for two days after the incident.

      Washington was in surgery for two and a half to three hours and remained

in the hospital for almost two weeks. Washington’s mother and her husband took

care of him after he was discharged, packing his wounds twice a day for

approximately a month, then once a day, depending on drainage, after that.

According to Washington’s mother, the bullet had “exploded his left kidney and

took six inches of his large intestine.” Washington’s wounds took around seven

months to heal, during which time he had to walk with a cane and required

assistance with activities such as going to the bathroom. At the time of trial,

Washington’s mother testified that he continued to live with them and that his

mobility had improved.

             c. Post Shooting Incarceration

      Neeley was incarcerated continuously after his arrest, and the jury heard

testimony from Tarrant County Corrections Center detention officers about his

behavior during the eighteen-month period. Two female jailers testified about

occasions when Neeley masturbated in front of them; another jailer testified


                                         11
about a physical altercation that Neeley engaged in with another inmate in

December 2012. According to the testimony, Neeley had been incarcerated for

less than a month when a jailer put in a move-sheet request that Neeley be

reclassified because his behavior was not suitable for general population.

      Neeley admitted that the correctional officers were telling the truth about

his masturbatory activities. Neeley also testified that, while he had not always

followed the jail rules, he had never assaulted any of the correctional officers.

During his confinement in jail, Neeley said that he had been written up for

causing disturbances “[p]robably like four times,” and that he had been written up

for engaging in fights twice.

      While he was in custody Neeley also got a dollar sign tattooed between his

eyebrows. He said that he got the dollar-sign tattoo because he liked money and

having nice things, so “[he] took the initiative to get it.”

      2. Analysis

      Neeley was convicted of a second-degree felony. See Tex. Penal Code

Ann. § 22.02(a)(2), (b). The punishment range for a second-degree felony is two

to twenty years’ confinement and may include a fine not to exceed $10,000. See

id. § 12.33.




                                           12
      Neeley argues that his “extraordinarily difficult childhood,”11 his age, and

Washington’s threats and violent nature, combined with his having pled guilty

and his expression of continuing remorse, “should have been more heavily

weighed by the jury in assessing his punishment.” He further argues that the

record “is fairly clear that [he] did not and does not have the financial wherewithal

to pay any amount of fine, much less a $10,000 fine.” And he contends that

because he was probation-eligible, probation would have been more appropriate

as a deterrent of future criminal activity.

      What the record reveals is that Neeley has a history of anger problems that

escalate into violent episodes, often involving the use or threats of use of guns.

On this occasion, an argument between Neeley and Washington had steadily

escalated, culminating in Neeley’s removal of a rifle from his vehicle with the

intent to shoot Washington. He did shoot Washington—in the back—destroying

one of Washington’s kidneys. And, just as he had witnessed his own uncle being

shot by gang members, Neeley’s younger brother, sister, and mother bore

witness to his crime. Two of them stood within the range of fire as Neeley

discharged the weapon.

      Neeley had been incarcerated for much of his youth but, based on his later

activities, the jury could have reasonably inferred that he had received no


      11
         In addition to other difficulties he faced during his childhood, Neeley
testified that when he was six years old, he witnessed his uncle being murdered
by a Crip gang member.


                                          13
rehabilitative benefit from the experience. Nor did the evidence tend to prove

that these periods of incarceration deterred Neeley from engaging in criminal

activity in his adult life. He dabbled in drug dealing whenever he needed money,

and he had a documented history of carrying weapons and using them to

threaten others.   Based on the entire record, and in light of the punishment

range, we cannot say that the jury’s fourteen-year sentence and $10,000 fine12 is

grossly disproportionate to the offense. Therefore, we do not reach the question

of comparable sentences. See Moore, 54 S.W.3d at 542. We overrule Neeley’s

sole issue.

                                 III. Conclusion

      Having overruled Neeley’s sole issue, we affirm the trial court’s judgment.


                                                   /s/ Bonnie Sudderth
                                                   BONNIE SUDDERTH
                                                   JUSTICE

PANEL: LIVINGSTON, C.J.; GABRIEL and SUDDERTH, JJ.

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

DELIVERED: April 30, 2015




      12
        Neeley refers us to his failure to graduate high school and his lack of a
long employment history to support his argument that the $10,000 fine is
excessive but he directs us to no other evidence to show his ability or inability to
pay a fine.


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