                        COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                             NO. 02-17-00045-CR


DONALD DWAYNE GRAVES                                                APPELLANT

                                       V.

THE STATE OF TEXAS                                                       STATE


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          FROM THE 371ST DISTRICT COURT OF TARRANT COUNTY
                      TRIAL COURT NO. 1445831D

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                        MEMORANDUM OPINION1

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      Appellant Donald Dwayne Graves appeals from his conviction for the first-

degree felony offense of aggravated assault and from the resulting life sentence.

See Tex. Penal Code Ann. § 22.02(b)(1) (West 2011). He argues that he is

entitled to a new trial based on the gross disproportionality of his sentence as




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       See Tex. R. App. P. 47.4.
compared to the offense and based on a jury-charge error. Finding no reversible

error, we affirm the trial court’s judgment.

                               I.     BACKGROUND

         Graves and Debra Ransom went to high school together and reconnected

years later.    Graves moved to Texas and lived with Ransom, and the two

became engaged. On the morning of February 20, 2016, Graves got out of bed,

went to the bathroom, and returned to the bedroom with a handgun. He pointed

the gun at Ransom and told her that he was going to shoot her. Thinking he was

joking, Ransom told him to put the gun away. Graves responded, “Are you just

going to sit there, or are you going to call 911?” Ransom then called 911. The

call was answered by her daughter, who worked as a 911 dispatcher. Ransom’s

daughter instructed her to walk to the front door of her home and unlock it. After

following her daughter’s instructions, Ransom attempted to reason with Graves,

but he shot her in the left cheekbone from approximately six feet away. Graves

then shot himself in the head. He and Ransom were rushed to the hospital; both

lived.

         As a result of the shooting, however, Ransom’s teeth were shattered, she

had blood on her brain, and she also sustained a broken left jawbone, broken

bones in her neck, lung bruising, and severe damage to her vertebral artery. She

has since experienced difficulty using the bathroom on her own, standing and

walking without assistance, feeding herself, and cutting her own food. She also

suffers from hallucinations.


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      At trial, a jury found Graves guilty of aggravated assault.         During

sentencing, the trial court instructed the jury on the possible effects of good-

conduct time and parole on Graves’s sentence:

      Under the law applicable in this case, the Defendant, if sentenced to
      a term of imprisonment, may earn time off the period of incarceration
      imposed through the award of good conduct time. Prison authorities
      may award good conduct time to a prisoner who exhibits good
      behavior, diligence in carrying out prison work assignments, and
      attempts at rehabilitation. If a prisoner engages in misconduct,
      prison authorities may also take away all or part of any good conduct
      time earned by the prisoner.

            It is also possible that the length of time for which the
      Defendant will be imprisoned might be reduced by the award of
      parole.

            Under the law applicable in this case, if the Defendant is
      sentenced to a term of imprisonment, he will not become eligible for
      parole until the actual time served equals one-half of the sentence
      imposed or 30 years, whichever is less, without consideration of any
      good conduct time he may earn. Eligibility for parole does not
      guarantee that parole will be granted.

            It cannot accurately be predicted how the parole law and good
      conduct time might be applied to this Defendant if he is sentenced to
      a term of imprisonment, because the application of these laws will
      depend on decisions made by prison and parole authorities.

           You may consider the existence of the parole law and good
      conduct time. However, you are not to consider the extent to which
      good conduct time may be awarded to or forfeited by this particular
      Defendant. You are not to consider the manner in which the parole
      law may be applied to this particular Defendant.

See Tex. Code Crim. Proc. Ann. art. 37.07, § 4(a) (West Supp. 2017).




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      The jury assessed a life sentence. Graves now appeals and contends that

the sentence is grossly disproportionate to his offense. He also asserts that the

instruction regarding good-conduct time and parole was harmful error.

                   II.    DISPROPORTIONATE SENTENCING

      In Graves’s first point, he argues that the sentence assessed by the jury is

grossly disproportionate to the committed offense and, therefore, violates the

Eighth Amendment’s prohibition on cruel and unusual punishment. To preserve a

complaint on appeal, the issue must be raised to the trial court “by a timely

request, objection, or motion.”     Tex. R. App. P. 33.1(a); see Curry v. State,

910 S.W.2d 490, 497 (Tex. Crim. App. 1995) (holding constitutional rights can be

forfeited if not properly raised). Graves did not raise this issue to the trial court at

any point during sentencing. After the trial court imposed the sentence in open

court, Graves had thirty days to file a motion for new trial but, instead, raises the

issue for the first time on appeal. Tex. R. App. P. 21.4(a). He has, thereby,

failed to preserve his complaint for our review. See Kim v. State, 283 S.W.3d

473, 475 (Tex. App.—Fort Worth 2009, pet. ref’d) (holding sentencing complaint

waived because defendant did not raise in motion for new trial).

      But even if Graves had preserved his complaint, his sentence does not

meet the exceedingly high threshold to be considered grossly disproportionate to

his offense. When assessing the proportionality of a sentence, the court first

considers the gravity of the offense compared with the harshness of the penalty.

Moore v. State, 54 S.W.3d 529, 542 (Tex. App.–Fort Worth 2001, pet. ref’d). If


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this comparison reveals that Graves’s sentence is proportionate to the offense,

we need not look any further. Harmelin v. Michigan, 501 U.S. 957, 960 (1991);

Moore, 54 S.W.3d at 542. Generally, punishments assessed within statutory

limits are proportionate and should be upheld.                  See State v. Simpson,

488 S.W.3d 318, 323 (Tex. Crim. App. 2016). Aggravated assault of a family

member is a first-degree felony, punishable by imprisonment “for life or any term

of not more than 99 years or less than 5 years.” Tex. Penal Code Ann. § 12.32

(West 2011); see id. § 22.02(b)(1).             Graves’s punishment fits within the

sentencing range allowed by statute.            Furthermore, Graves aimed a loaded

handgun at his girlfriend and shot her in the face, causing irreparable damage.

Based   on   the   facts,   the      sentence    is   neither   excessive   nor   grossly

disproportionate. See Ory v. State, No. 05-13-00172-CR, 2014 WL 3401714, at

*1 (Tex. App.—Dallas July 10, 2014, no pet.) (mem. op., not designated for

publication) (holding 48-year sentence for aggravated assault of a public servant

was proportionate even though defendant had no prior criminal record, had a

history of mental illness, did not always take his medications, and had the intent

to assault the officer). We overrule point one.

                              III.      JURY CHARGE

      In Graves’s second point, he argues that the trial court violated his

constitutional rights to due process and due course of law by including in the jury

charge an instruction regarding good-conduct time and parole. The instructions

regarding the possible effects of good-conduct time and parole on a defendant’s


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sentence are statutorily required even if they are inapplicable to a particular

defendant. See Tex. Code Crim. Proc. Ann. art. 37.07, § 4(a); see also Luquis v.

State, 72 S.W.3d 355, 363 (Tex. Crim. App. 2002).       The instructions do not

violate a defendant’s rights to due process or to due course of law. Luquis,

72 S.W.3d at 364–68.      Therefore, the trial court did not err by including the

instruction even though inapplicable to Graves.          See Sanders v. State,

255 S.W.3d 754, 765–66 (Tex. App.—Fort Worth 2008, pet. ref’d). We overrule

point two.

                               IV.   CONCLUSION

      Having overruled Graves’s points, we affirm the trial court’s judgment.

See Tex. R. App. P. 43.2(a).


                                                  /s/ Lee Gabriel

                                                  LEE GABRIEL
                                                  JUSTICE

PANEL: GABRIEL, KERR, and PITTMAN, JJ.

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

DELIVERED: February 15, 2018




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