      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                        NO. 03-08-00132-CR



                                 Justin Ryan McCarthy, Appellant

                                                   v.

                                    The State of Texas, Appellee


  FROM THE DISTRICT COURT OF WILLIAMSON COUNTY, 26TH JUDICIAL DISTRICT
    NO. 05-437-K26, HONORABLE BILLY RAY STUBBLEFIELD, JUDGE PRESIDING



                              MEMORANDUM OPINION


                On June 9, 2005, Justin Ryan McCarthy pleaded guilty to the first-degree felony

offense of possession of a controlled substance, methylenedioxy methamphetamine, or “ecstasy,”

with intent to deliver. See Tex. Health & Safety Code Ann. § 481.113(d) (West 2003). The

trial court placed him on deferred adjudication for a period of ten years and imposed a fine of $2,500.

On April 25, 2006, the State filed a motion to adjudicate guilt based on alleged violations of

McCarthy’s conditions of community supervision. After a hearing in which McCarthy pleaded

“true” to three of the allegations in the State’s motion to adjudicate, the trial court granted the motion

and rendered judgment adjudicating guilt and sentencing McCarthy to forty years’ confinement. On

appeal, McCarthy argues that the trial court erred in (1) denying his request for a continuance to

procure a necessary witness, (2) refusing to admit evidence of a co-defendant’s sentence, and
(3) imposing a sentence that amounted to cruel and unusual punishment in violation of the Eighth

Amendment. See U.S. Const. amend. VIII. We affirm the trial court’s judgment.


                                        BACKGROUND

               In 2001, McCarthy was placed on deferred adjudication in Missouri for felony

possession of marijuana. While on deferred adjudication in Missouri, McCarthy moved to Texas

and was arrested in February 2005 for possession of ecstasy with intent to deliver, in the amount of

four grams or more but less than four hundred grams. See Tex. Health & Safety Code Ann.

§ 481.113(d). At the time of his arrest, McCarthy was riding as a passenger in a vehicle driven by

Brandon Edgar. Approximately 137 ecstasy tablets were discovered in the vehicle after Edgar was

pulled over for a traffic violation, and both Edgar and McCarthy were arrested and charged with

possession of a controlled substance with intent to deliver.1

               McCarthy pleaded guilty to the offense and, on August 12, 2005, the trial court placed

him on deferred adjudication for a period of ten years. As a result, McCarthy was simultaneously

on deferred adjudication in both Missouri and Texas. On November 6, 2005, McCarthy was arrested

in Travis County, Texas, for driving while intoxicated (DWI). McCarthy informed his probation

officers, in both Missouri and Texas, of the arrest. The Williamson County District Attorney’s

Office informed McCarthy that the State would not file a motion to adjudicate guilt based on the

DWI arrest, provided McCarthy complied with the original terms of his plea bargain and cooperated

with Williamson County in another prosecution. McCarthy’s Missouri probation officer, however,


       1
         McCarthy conceded at the adjudication hearing that he had placed the ecstasy tablets in a
sock, and that the tablet-filled sock was found in a suitcase in the back of the vehicle.

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notified him that the State would be filing a motion to adjudicate based on the DWI arrest. Upon

learning that Missouri intended to proceed to adjudication, McCarthy stopped reporting to either

probation officer in February 2006 and subsequently moved to California without permission.

               McCarthy’s Texas probation officer testified at the hearing that even before McCarthy

ceased reporting and moved to California, he had violated his probation by failing to attend certain

required programs and failing to seek treatment at an intensive out-patient chemical abuse treatment

facility. A representative of Williamson County further testified that McCarthy had not paid any of

his required monthly fees to the Williamson County probation office during his deferred

adjudication. Based on these violations, as well as the DWI arrest and McCarthy’s failure to report,

the State filed its motion to adjudicate guilt on April 25, 2006.

               On February 13, 2007, while McCarthy was still living in California with warrants

out for his arrest in Missouri and Texas, he was pulled over for failure to wear a seat belt. The

California police officer detected the odor of marijuana and obtained McCarthy’s permission to

search the vehicle, where he found half a gram of marijuana. The officer then obtained permission

to search McCarthy’s nearby home, where he found approximately eight grams of marijuana. At

some point, the officer discovered McCarthy’s outstanding warrants and arrested him. McCarthy

was subsequently released when Williamson County failed to retrieve him from California, but the

warrant was reissued, and McCarthy was arrested in his home and extradited to Texas approximately

two weeks later.

               The adjudication hearing was held on January 16, 2008, and continued to

February 19, 2008. McCarthy pleaded true to the State’s allegations that he had failed to report to



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his probation officer on a monthly basis as required and that he had failed to make his required

monthly payments to the Williamson County probation office. McCarthy stood mute or pleaded not

true to the State’s allegations that he had driven while intoxicated or consumed an alcoholic beverage

on November 6, 2005, that he had changed his place of residence without permission, that he had

failed to perform his required community service, that he had failed to commit himself to an

intensive outpatient chemical abuse treatment facility as directed, that he had failed to attend

alcoholics anonymous or narcotics anonymous meetings as directed, that he had failed to attend a

victim impact program as directed, and that he had failed to complete a cognitive education program

as directed. The trial court found all of the allegations to be true and sentenced McCarthy to

forty years’ imprisonment.

               On appeal, McCarthy argues that the trial court erred in (1) denying his request for

a continuance to procure a necessary witness, (2) refusing to admit evidence of a co-defendant’s

sentence, and (3) imposing a sentence that amounted to cruel and unusual punishment.


                                   STANDARD OF REVIEW

               An appeal is permitted from a trial court’s decision to proceed to an adjudication of

guilt. See Tex. Code Crim. Proc. Ann. art. 42.12 § 5(b) (West Supp. 2008). Such a decision is

reviewable in the same manner as a decision to revoke post-conviction supervision. See id. The

violation of a single condition of community supervision is sufficient to support a revocation

decision. Moore v. State, 605 S.W.2d 924, 926 (Tex. Crim. App. 1980).

               We review a trial court’s ruling on a motion for continuance for abuse of discretion.

Gallo v. State, 239 S.W.3d 757, 764 (Tex. Crim. App. 2007); Janecka v. State, 937 S.W.2d 456, 468

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(Tex. Crim. App. 1996). To establish an abuse of discretion, there must be a showing that the

defendant was actually prejudiced by the denial of his motion. Gallo, 239 S.W.3d at 764; Janecka,

937 S.W.2d at 468.

                We review a trial court’s decision to admit or exclude evidence for an abuse of

discretion. Shuffield v. State, 189 S.W.3d 782, 793 (Tex. Crim. App. 2006). If the trial court’s

decision was within the bounds of reasonable disagreement, we will not disturb its ruling. Id.

                The Eighth Amendment prohibits cruel and unusual punishment, including extreme

sentences that are “grossly disproportionate” to the crime. Ewing v. California, 538 U.S. 11, 23

(2003). In reviewing an appellant’s claim that his sentence was grossly disproportionate, we must

analyze “the gravity of the offense compared to the harshness of the penalty,” according “proper

deference to the policy judgments that find expression in the legislature’s choice of sanctions.”

Id. at 28-29.


                                           DISCUSSION

Motion for Continuance

                In his first issue, McCarthy argues that the trial court erred in denying his motion for

a continuance in order to allow him to procure a necessary witness, his fiance, Candice Ramirez.

According to McCarthy, Ramirez was a critical witness because she lived with him during the time

period in which he stopped reporting to his probation officer, and could have testified regarding the

emotional and financial problems that caused him to violate his probation and move to California.

He further argues that Ramirez’s testimony would have “allowed the trial judge to understand that




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Appellant’s behavior and mental processes were impaired to the point where he was unable to make

intelligent and knowing decisions.”2

               A motion for continuance in a criminal trial must be sworn to by someone who has

personal knowledge of the facts relied on for the continuance. Tex. Code Crim. Proc. Ann. art. 29.08

(West 2006). McCarthy’s motion was not sworn to and therefore any error in denying the motion

has not been preserved for review. See Matamoros v. State, 901 S.W.2d 470, 478 (Tex. Crim. App.

1995). Furthermore, even if error had been preserved, the record reflects that McCarthy failed to

obtain a subpoena for Ramirez or otherwise attempt to secure her attendance at the hearing, despite

having previously been granted a continuance in order to allow her to testify.3 A trial court does not

err in denying a motion for continuance when the movant has failed to demonstrate the diligence

required in seeking to locate or subpoena the missing witness. See Dewberry v. State, 4 S.W.3d 735,

756 (Tex. Crim. App. 1999); Peoples v. State, 477 S.W.2d 899, 891 (Tex. Crim. App. 1972). Under

the circumstances, we hold that the trial court acted within its discretion in denying the motion for

continuance. McCarthy’s first issue is overruled.




       2
          Because McCarthy pleaded true to multiple allegations in the State’s motion to adjudicate,
Ramirez’s testimony would not have been relevant to the trial court’s decision to proceed to
adjudication. However, McCarthy takes the position that Ramirez’s testimony would have been
relevant to the mitigation of his punishment.
       3
          In addition, the hearing in this case began on January 16, 2008, but was not completed on
that date and was carried over to February 19, 2008. McCarthy moved for a continuance at the
first hearing date, but did not reurge his motion or secure Ramirez’s attendance at the second
hearing date.

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Evidence of Co-defendant’s Sentence

               In his second issue on appeal, McCarthy argues that the trial court erred in refusing

to admit evidence of the punishment assessed against Edgar, McCarthy’s co-defendant, for the same

offense—possession of a controlled substance with intent to deliver. When McCarthy attempted to

offer Edgar’s judgment of conviction into evidence, the trial court sustained the State’s objection

based on relevance.

               McCarthy argues that Edgar’s sentence is relevant because it involved the same

offense and would have given the trial court “a framework upon which to assess punishment in this

case.” However, the court of criminal appeals has held that the punishment received by a

co-defendant is not relevant to the issue of what punishment the defendant should receive. See

Evans v. State, 656 S.W.2d 65, 67 (Tex. Crim. App. 1983) (“The law contemplates evidence

personal to the accused, not comparisons with the convictions and punishments of other

defendants.”); see also Eichelberger v. State, 232 S.W.3d 225, 227 (Tex. App.—Fort Worth 2007,

pet. ref’d) (“[O]nly a defendant’s own circumstances are relevant in determining an appropriate

punishment for that defendant.”). In light of this authority, we hold that the trial court did not abuse

its discretion in refusing to admit evidence of Edgar’s sentence. McCarthy’s second issue is

overruled.


Eighth Amendment

               In his third issue on appeal, McCarthy argues that the trial court violated the

Eighth Amendment by imposing a sentence that was grossly disproportionate to the seriousness of

the offense committed. The trial court assessed punishment in this case at 40 years’ imprisonment

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for the first-degree felony offense of possession of a controlled substance with intent to deliver. See

Tex. Health & Safety Code Ann. § 481.113(d). The punishment range for this offense is

incarceration for life or a term of five to 99 years, and a fine of up to $10,000. See Tex. Penal Code

Ann. § 12.32 (West 2003). McCarthy’s sentence is within the range of punishment for this offense.

It is well established that a sentence falling within the applicable range of punishment generally does

not violate the Eighth Amendment. See, e.g., Samuel v. State, 477 S.W.2d 611, 614 (Tex. Crim.

App. 1972); Williams v. State, 191 S.W.3d 242, 262 n.6 (Tex. App.—Austin 2006, no pet.).

               A sentence falling within the applicable range of punishment might still be considered

cruel and unusual in cases involving “extreme sentences” that are “grossly disproportionate” to the

offense. Ewing, 538 U.S. at 23 (quoting Harmelin v. Michigan, 501 U.S. 957, 1001 (1991)

(Kennedy, J., concurring)). In determining whether a sentence is grossly disproportionate, we

consider not only the present offense but also the accused’s criminal history. Buster v. State,

144 S.W.3d 71, 81 (Tex. App.—Tyler 2004, no pet.); Davis v. State, 119 S.W.3d 359, 363

(Tex. App.—Waco 2003, pet. ref’d).

               McCarthy’s criminal history reflects his conviction for the present offense of

possession of ecstasy with intent to deliver, deferred adjudication for felony possession of marijuana

in another state, and a DWI conviction. He also committed a number of violations of both his Texas

and Missouri probation, ultimately absconding to California where, at the time of his arrest, he was

in possession of over eight grams of marijuana. Given the circumstances and the fact that the

sentence imposed was in the lower half of the statutory range, we cannot conclude that McCarthy’s

sentence was grossly disproportionate to the offense.



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               In any event, this issue has not been properly preserved for appellate review because

McCarthy did not object to the assessed punishment at sentencing or by filing a motion for new trial.

See Kim v. State, 283 S.W.3d 473, 475 (Tex. App.—Fort Worth 2009, no pet.) (“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.”); see also Tex. R. App. P. 33.1(a). As a result,

we overrule McCarthy’s third issue on appeal.


                                          CONCLUSION

               We affirm the trial court’s judgment.




                                               ___________________________________________

                                               Diane M. Henson, Justice

Before Chief Justice Jones, Justices Puryear and Henson

Affirmed

Filed: September 24, 2009

Do Not Publish




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