                      PD-1548-15                                       PD-1548-15
                                                      COURT OF CRIMINAL APPEALS
                                                                      AUSTIN, TEXAS
                                                    Transmitted 11/30/2015 9:34:12 AM
                                                       Accepted 12/1/2015 1:15:29 PM
                   NO. ___________________                             ABEL ACOSTA
                                                                               CLERK

  IN THE COURT OF CRIMINAL APPEALS OF TEXAS




                      JAMES REID

                             v.

              THE STATE OF TEXAS


             From the Waco Court of Appeals
                Cause No. 10-14-00107-CR


         APPELLANT JAMES REID’S
   PETITION FOR DISCRETIONARY REVIEW


                                  E. Alan Bennett
                                  State Bar #02140700
                                  Counsel for Appellant

                                  Sheehy, Lovelace & Mayfield, P.C.
December 1, 2015                  510 N. Valley Mills Dr., Ste. 500
                                  Waco, Texas 76710
                                  Telephone: (254) 772-8022
                                  Telecopier: (254) 772-9297
                                  Email: abennett@slmpc.com


         ORAL ARGUMENT REQUESTED
               Identity of Judge, Parties and Counsel

     Appellant, pursuant to Rule of Appellate Procedure 68.4(a), provides

the following list of the trial court judge, all parties to the trial court’s

judgment, and the names and addresses of all trial and appellate counsel.


THE TRIAL COURT:

Hon. Matt Johnson                                          Trial Court Judge
54th District Court, McLennan County
501 Washington Avenue, Suite 305
Waco, Texas 76701

THE DEFENSE:

James Reid                                                        Appellant

Doug Henager                                                   Trial Counsel
Scott Peterson
1701 Austin Ave.
Waco, Texas 76701

E. Alan Bennett                                           Appellate Counsel
510 North Valley Mills Drive, Suite 500
Waco, Texas 76710




Appellant Thomas Leon Reid’s PDR                                       Page 2
THE STATE:

Hilary LaBorde                                   Trial Counsel
Gabrielle Massey
Assistant Criminal District Attorneys

Sterling Alan Harmon                         Appellate Counsel
Gabe Price
Assistant Criminal District Attorney

Abelino Reyna
Criminal District Attorney
McLennan County District Attorney’s Office
219 North 6th Street, Suite 200
Waco, Texas 76701




Appellant James Reid’s PDR                               Page 3
                                           Table of Contents

Identity of Judge, Parties and Counsel ................................................................2

Table of Contents ....................................................................................................4

Index of Authorities ................................................................................................6

Statement Regarding Oral Argument ..................................................................8

Statement of the Case .............................................................................................8

Statement of Procedural History ..........................................................................9

Grounds for Review................................................................................................9

Reasons for Granting Review ..............................................................................10

Argument ...............................................................................................................11

  1. The Waco Court of Appeals erroneously applied a hairsplitting,
  hypertechnical standard when it concluded that Appellant’s running
  objection failed to preserve error. ....................................................................11

      A. Preservation Rules Are Not Applied in Hypertechnical Fashion. ....12
      B. Running Objections Should Not Be Overly Broad. ..............................13
      C. Appellate Courts Review Running Objections in Context. ................15
      D. The Waco Court Erred by Holding That Appellant Waived Error. ..19
      E. The Waco Court’s Decision Denied Appellant His Right to Appeal.21
      F. The Court Should Grant Review on This Issue .....................................22



  2. The imposition of consecutive sentences without a statement of
  reasons violates the Eighth Amendment prohibition against cruel and
  unusual punishments. .......................................................................................24

Appellant James Reid’s PDR                                                                                       Page 4
      A. The       Eighth        Amendment                    Eschews              Arbitrariness                 and
      Unpredictability. ............................................................................................25
      B. The Second Circuit Has Required a Statement of Reasons. ................26
      C. Texas Appellate Courts Have Granted Unbridled Discretion. ..........27
      D. Trial Courts Should Be Required to Give Reasons. .............................28
      E. Johnson did not address the Eighth Amendment. .................................28
      F. The Court Should Grant Review. ............................................................30


Prayer ......................................................................................................................31

Certificate of Compliance ....................................................................................32

Certificate of Service .............................................................................................32

Appendix ................................................................................................................33




Appellant James Reid’s PDR                                                                                           Page 5
                                             Index of Authorities

                                                     Federal Cases

California v. Brown, 479 U.S. 538, 107 S.Ct. 837, 93 L.Ed.2d 934 (1987)25,                                                     26,
27, 28

Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976) (plurality
opinion)............................................................................................................ 25, 28

Penry v. Texas, 492 U.S. 302, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989) ....... 25, 28

United States v. Golomb, 754 F.2d 86 (2d Cir. 1985) .................................... 26, 27

Woodson v. North Carolina, 428 U.S. 280, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976)
..................................................................................................................................26



                                                       Texas Cases

Baird v. State, 455 S.W.2d 259 (Tex. Crim. App. 1970)......................................29

Barrow v. State, 207 S.W.3d 377 (Tex. Crim. App. 2006) ..................................27

Beedy v. State, 250 S.W.3d 107 (Tex. Crim. App. 2008) .....................................27

Ethington v. State, 819 S.W.2d 854 (Tex. Crim. App. 1991) ..............................14

Ford v. State, 112 S.W.3d 788 (Tex. App.—Houston [14th Dist.] 2003, no pet.)
..................................................................................................................... 16, 17, 21

Ford v. State, 919 S.W.2d 107 (Tex. Crim. App. 1996) .......................................14

George v. State, 959 S.W.2d 378 (Tex. App.—Beaumont 1998, pet. ref’d) 18, 21

Goodman v. State, 701 S.W.2d 850 (Tex. Crim. App. 1985) ...............................14

Johnson v. State, 492 S.W.2d 505 (Tex. Crim. App. 1973) .................................29

Lankston v. State, 827 S.W.2d 907 (Tex. Crim. App. 1992) ...............................12

Appellant James Reid’s PDR                                                                                                Page 6
Martinez v. State, 98 S.W.3d 189 (Tex. Crim. App. 2003) .................................14

Nicholas v. State, 56 S.W.3d 760 (Tex. App.—Houston [14th Dist.] 2001, pet.
ref’d) ........................................................................................................................28

Reid v. State, No. 10-14-00107-CR, 2015 WL 6584361 (Tex. App.—Waco Oct.
29, 2015, pet. filed) .................................................................................................20

Rivas v. State, 275 S.W.3d 880 (Tex. Crim. App. 2009) .....................................13

Sattiewhite v. State, 786 S.W.2d 271 (Tex. Crim. App. 1989) ............... 14, 15, 21

Thomas v. State, 408 S.W.3d 877 (Tex. Crim. App. 2013) ........................... 13, 15

Walker v. State, 406 S.W.3d 590 (Tex. App.—Eastland 2013, pet. ref’d) ............
..................................................................................................................... 14, 16, 21



                                              Federal Constitution

U.S. CONST. amend. VIII .......................................................................................25



                                                   Texas Statutes

TEX. CODE CRIM. PROC. art. 42.08(a) ....................................................................29



                                                           Rules

TEX. R. APP. P. 66.3 .............................................................................. 10, 22, 23, 30




Appellant James Reid’s PDR                                                                                             Page 7
                 Statement Regarding Oral Argument
      Oral argument will aid the decisional process. By granting oral

argument, counsel may answer questions posed by the judges regarding

the intersection between this Court’s stated preference for avoidance of

hypertechnical application of preservation rules and the principles

governing running objections. In addition, oral argument will allow for a

full presentation and thoughtful discussion regarding the extent to which

the Eighth Amendment impacts a trial court’s decision to impose

consecutive sentences. For these reasons and to address any other issues,

Appellant respectfully requests the opportunity to appear and present oral

argument.

                             Statement of the Case

      A jury convicted Appellant of three counts of indecency with a child.

The jury assessed his punishment at 16 years’ imprisonment on each count.

The trial court sentenced Appellant in accordance with the verdict and

ordered the sentences to run consecutively.




Appellant James Reid’s PDR                                           Page 8
                     Statement of Procedural History

      The Waco Court of Appeals affirmed Appellant’s conviction in a

unanimous opinion authored by Justice Davis that was handed down

October 29, 2015. No motion for rehearing was filed.




                             Grounds for Review


      1.    The Waco Court of Appeals erroneously applied a hairsplitting,
            hypertechnical standard when it concluded that Appellant’s
            running objection failed to preserve error.

      2.    The imposition of consecutive sentences without a statement of
            reasons violates the Eighth Amendment prohibition against
            cruel and unusual punishments.




Appellant James Reid’s PDR                                          Page 9
                        Reasons for Granting Review

      The Court should grant discretionary review in this appeal because

the Waco Court of Appeals: (1) has issued a decision that conflicts with the

decisions of other intermediate appellate courts; (2) has decided an

important question of state and federal law that has not been, but should

be, settled by this Court; (3) has decided important questions of state and

federal law in a way that conflicts with the applicable decisions of this

Court and of the Supreme Court of the United States; (4) has misconstrued

Rule of Appellate Procedure 33.1(a)(1) and Rule of Evidence 103(a)(1); and

(5) has so far departed from the accepted and usual course of judicial

proceedings as to call for an exercise of this Court's power of supervision.

TEX. R. APP. P. 66.3.




Appellant James Reid’s PDR                                           Page 10
                                   Argument

1.    The Waco Court of Appeals erroneously applied a hairsplitting,
      hypertechnical standard when it concluded that Appellant’s
      running objection failed to preserve error.


      Appellant contested the admissibility of his prior convictions from

New York for sexual abuse during the guilt-innocence phase. The issue

originally arose via the State’s motion in limine that the trial court initially

granted. Then, when the State convinced the trial court that Appellant had

opened the door to the admissibility of the prior convictions, the trial court

overruled Appellant’s objection but granted a “running objection on this

issue.” The witness who was testifying at that moment and three others

testified about his prior convictions. Appellant presented a complaint on

appeal regarding these witnesses testifying about the prior convictions.

However, the Waco Court of Appeals held that the running objection failed

to adequately preserve the complaint. The Waco Court erred by doing so

because Appellant’s running objection was sufficiently narrow and

sufficiently specific to preserve error.




Appellant James Reid’s PDR                                               Page 11
A. Preservation Rules Are Not Applied in Hypertechnical Fashion.

         For over twenty years, this Court has emphasized that the rules for

preservation of error should be applied in a common-sense fashion and

preservation should not depend on a hypertechnical application of these

rules. This has represented a shift of emphasis from past decisions that

elevated form over substance.

         To be sure, there are reported cases which seem to take a more
         slavish and unforgiving approach, but these have dwindled in
         importance as they have in frequency. Contemporary examples
         are now few and far between, and it is our purpose that they
         become even less common in the future.

         ....

         The standards of procedural default, therefore, are not to be
         implemented by splitting hairs in the appellate courts. As
         regards specificity, all a party has to do to avoid the forfeiture
         of a complaint on appeal is to let the trial judge know what he
         wants, why he thinks himself entitled to it, and to do so clearly
         enough for the judge to understand him at a time when the trial
         court is in a proper position to do something about it.

Lankston v. State, 827 S.W.2d 907, 908-09 (Tex. Crim. App. 1992).

         The Court has continued to embrace this approach to preservation of

error.

         We have extended this concept even so far as to hold that a
         party need not state his objection with specificity in order to
         preserve error so long as the record otherwise makes it clear


Appellant James Reid’s PDR                                                Page 12
      that both the trial court and the opposing party understood the
      legal basis. After all, the reason that any objection must be
      specific in the first place is so that the trial court can avoid the
      error or provide a timely and appropriate remedy, and the
      opposing party has an opportunity to respond and, if
      necessary, react. So long as it appears from an appellate record
      that these policies have been satisfied, it should not matter to
      the appellate court whether the objecting party used a
      particular “form of words”—or any particular words at all, if
      meaning is adequately conveyed by context.

Thomas v. State, 408 S.W.3d 877, 884-85 (Tex. Crim. App. 2013); see also Rivas

v. State, 275 S.W.3d 880, 881-82 (Tex. Crim. App. 2009).

      The Waco Court wholly failed to follow these principles when it

concluded that Appellant’s running objection failed to preserve his

complaint.

B. Running Objections Should Not Be Overly Broad.

      Rule of Appellate Procedure 33.1(a)(1) and Rule of Evidence 103(a)(1)

provide the general rules for preservation of error, namely, a specific and

timely objection should be asserted each time the complained-of line of

testimony is offered.

      However, such a complaint may also be preserved by: (1) a specific

running objection; or (2) a ruling outside the jury’s presence. Martinez v.




Appellant James Reid’s PDR                                               Page 13
State, 98 S.W.3d 189, 193 (Tex. Crim. App. 2003); Walker v. State, 406 S.W.3d

590, 599 (Tex. App.—Eastland 2013, pet. ref’d).

      This Court has observed that on some occasions a running objection

“is not only adequate to preserve error, but actually desirable.” Ethington v.

State, 819 S.W.2d 854, 858–59 (Tex. Crim. App. 1991). However, a running

objection is impermissibly overbroad when it complains generally of a

matter referred to by any witness at any time during the trial. Goodman v.

State, 701 S.W.2d 850, 863 (Tex. Crim. App. 1985). Thus, “an advocate who

lodges a running objection should take pains to make sure it does not

encompass too broad a reach of subject matter over too broad a time or

over different witnesses.” Sattiewhite v. State, 786 S.W.2d 271, 284 n.4 (Tex.

Crim. App. 1989).

      Nevertheless, “as long as the running objection constituted a timely

objection, stating the specific grounds for the ruling, the movement desired

the court to make . . . [,] then the error should be deemed preserved by an

appellate court.” Ford v. State, 919 S.W.2d 107, 113 (Tex. Crim. App. 1996)

(quoting Sattiewhite, 786 S.W.2d at 284-85 n.4).

      Returning to the Sattiewhite discussion of impermissibly overbroad

running objections, the Court in that decision enunciated a two-part

Appellant James Reid’s PDR                                             Page 14
standard for evaluating whether a running objection is too broad. The

phrasing indicates that both must be present for the objection to be

impermissibly overbroad. First, an impermissibly overbroad running

objection addresses “too broad a reach of subject matter.” Sattiewhite, 786

S.W.2d at 284 n.4. And second, a running objection that addresses a broad

subject matter is impermissibly overbroad if the objection runs “over too

broad a time or over different witnesses.” Id.

       Here, Appellant’s running objection addressed the narrow issue of

the admissibility of his prior convictions. (4 RR 55-58) The trial court

granted “a running objection on this issue.” (4 RR 58)

       Therefore, Appellant’s objection did not run afoul of the first part of

the Sattiewhite test. For this reason, the Waco Court should not have

reached the second part of the Sattiewhite test regarding the objection

extending to multiple witnesses.

C. Appellate Courts Review Running Objections in Context.

       As this Court recently held, the context of the objection is important

in determining whether error has been preserved. Thomas, 408 S.W.3d at

885.




Appellant James Reid’s PDR                                             Page 15
      Appellant has located three cases in which Texas appellate courts

have concluded, consistent with Thomas, that a running objection was

sufficient to preserve error when viewed in context.

      In Walker, defense counsel secured a running objection before the first

of two witnesses testified about the subject at issue. The Eastland Court

found in context that the objection was sufficient to preserve error with

regard to that issue as to both witnesses.

      We note that the trial court permitted defense counsel to enter a
      running objection prior to Officer Luckie's testimony during the
      punishment phase to the “line of new questioning . . . based on
      . . . charges [ ] not pursued in Hood County.” The running
      objection contextually covers the testimony of Officers Luckie
      and Miller, based on the charges not pursued in Hood County.

Walker, 406 S.W.3d at 599 (emphasis added).

      In Ford, the Fourteenth Court addressed a situation in which the

defense sought to exclude evidence of the defendant’s prior conviction

during the guilt-innocence phase. The defense raised this complaint by

pretrial motion in limine. The trial court denied the motion in limine but

granted a running objection to the introduction of that evidence. Ford v.

State, 112 S.W.3d 788, 791 (Tex. App.—Houston [14th Dist.] 2003, no pet.).

The State argued that the defendant failed to preserve his complaint



Appellant James Reid’s PDR                                            Page 16
because he did not re-urge the objection when the State offered evidence

that he had stipulated to the prior conviction. Id.

      The Fourteenth Court rejected the State’s waiver argument after

reviewing the context in which the running objection was granted.

      [I]n this case trial counsel specifically requested a running
      objection to the introduction of evidence addressed in the
      motion in limine and the trial court granted counsel’s request.
      Because the trial court granted appellant's running objection to
      the admission of evidence that he now complains of on appeal,
      we find the State’s contention that error was waived to be
      without merit.

Id.

      The Beaumont Court took a similar approach in George. In that case,

the defense objected to the introduction of evidence regarding prior rib

fractures. The defense first raised the issue in a pretrial motion in limine.

The defense objected when medical records were introduced that included

evidence of the prior fractures. When one physician testified, Dr. Sanders,

the trial court granted a running objection on this issue. Then when a

second physician testified, Dr. Luquette, the defense against requested and

was granted a running objection on this issue. However, defense counsel

failed to object when the State questioned Dr. Luquette on redirect

examination regarding the prior rib fractures. Thus, the State urged on


Appellant James Reid’s PDR                                            Page 17
appeal that the defense had waived the complaint. George v. State, 959

S.W.2d 378, 383-84 (Tex. App.—Beaumont 1998, pet. ref’d).

      Like the Fourteenth Court, the Beaumont Court rejected this waiver

argument after reviewing the context in which the complaint was raised.

      After reviewing the statements by counsel and the court
      pertaining to the prior injury evidence, it is clear that the trial
      judge and the State were notified of the complaint. We
      conclude the combination of Defense Counsel's efforts,
      including the pre-trial motion, numerous objections at trial to
      the prior injury evidence, along with the requests for running
      objections was amply sufficient to preserve error.

Id. at 384.

      The Waco Court, in hypertechnical, hair-splitting fashion, failed to

view in context Appellant’s numerous objections, the State’s own

acknowledgement by motion in limine that the evidence was inadmissible,

and the hearing outside the jury’s presence immediately before granting a

running objection. When counsel’s efforts are viewed in context, the trial

court and the State had more than sufficient notice of the basis for the




Appellant James Reid’s PDR                                              Page 18
complaint.1 Thus, the Waco Court erred by holding that Appellant failed to

preserve his complaint.

D. The Waco Court Erred by Holding That Appellant Waived Error.

      From the beginning, the parties and the trial court understood that

the prior convictions were not admissible during the guilt-innocence phase.

The State raised this issue by motion in limine and asked the trial court to

prohibit Appellant from introducing evidence regarding the details of the

prior conviction. (CR 35-37) Following a discussion on the record, the trial

court granted that motion. (CR 38), (3 RR 6-9)

      The issue was again revisited in a hearing outside the presence of the

jury when the State argued that Appellant had opened the door to evidence

of the prior convictions during his examination of a witness for the defense.

The trial court agreed with the State. The trial court’s ruling reflects that the

trial court and the parties had considered this evidence inadmissible up to

that point. (4 RR 55-56)

      When the State asked this witness about the prior convictions before

the jury, Appellant re-urged his objections that this was inadmissible

1
       And from the context of the appellate record, it seems apparent that the State’s
attorney believed the issue was adequately preserved because the State did not contend
otherwise in its brief before the Waco Court.


Appellant James Reid’s PDR                                                     Page 19
extraneous-offense evidence under Rule 404(b) and likewise inadmissible

under Rule 403. The trial court overruled the objection. (4 RR 57)

      Next, the State inquired into the details of the prior convictions. At

that point, Appellant re-urged his prior objections and requested “a

running objection on this issue.” The trial court overruled the objection but

granted a running objection. (4 RR 58)

      The State cross-examined three other defense witnesses about the

prior convictions, but Appellant (convinced that his “running objection on

this issue” preserved error with regard to these subsequent witnesses) did

not re-urge the running objection when the State questioned these

witnesses on this issue.

      The Waco Court of Appeals concluded that Appellant failed to

preserve his complaint because he failed to re-urge the running objection

when these subsequent witnesses were questioned on this issue. See Reid v.

State, No. 10-14-00107-CR, 2015 WL 6584361, at *3-4 (Tex. App.—Waco Oct.

29, 2015, pet. filed). Appellant argues that the Waco Court employed the

hypertechnical hairsplitting approach to preservation of error condemned

by this Court in Thomas, Rivas and Lankston, among other decisions.




Appellant James Reid’s PDR                                            Page 20
      Rather, when the running objection granted by the trial court is

evaluated in the context of the trial proceedings, this Court must conclude

that the issue was properly preserved. See Walker, 406 S.W.3d at 599; Ford,

112 S.W.3d at 791; George, 959 S.W.2d at 384. Clearly, the trial court and the

State understood the basis of Appellant’s complaint. In fact, the State’s brief

on appeal reflected the State’s belief that the issue was properly preserved.

The objection was narrowly focused on the issue of admissibility of the

prior convictions. Cf. Sattiewhite, 786 S.W.2d at 284 n.4 (running objection

must “not encompass too broad a reach of subject matter”). For these

reasons, the Waco Court erred by concluding that Appellant failed to

preserve his complaint for appellate review.

E. The Waco Court’s Decision Denied Appellant His Right to Appeal.

      Appellant’s first and second issues in the Waco Court related to the

improperly-admitted evidence of his prior convictions. The first issue

directly challenged the admissibility of this evidence. The second related to

inadmissible backdoor hearsay regarding Appellants’ alleged “high risk to

re-offend.” The Waco Court’s disposition of the first issue on preservation

grounds impacted its disposition of the second.




Appellant James Reid’s PDR                                              Page 21
      Thus, the Waco Court held that the admission of testimony regarding

the prior convictions rendered harmless any error arising from the

admission of the inadmissible hearsay evidence challenged in Appellant’s

second issue.

      For these reasons, Appellant asks the Court to grant review on the

preservation issue and, upon finding that the complaint was properly

preserved, remand this case to the Waco Court to reconsider Appellant’s

first and second issues.

F. The Court Should Grant Review on This Issue

      The Court should grant review of this issue for many of the reasons

listed in Rule 66.3. See TEX. R. APP. P. 66.3.

      The Waco Court’s decision conflicts with the decisions of at least

three other intermediate appellate courts, namely Walker, Ford and George.

Id. 66.3(a).

      The Waco Court’s decision conflicts with the applicable decisions of

this Court, namely Thomas, Rivas and Lankston. Id. 66.3(c).

      The Waco Court appears to have misconstrued Rule of Appellate

Procedure 33.1(a)(1) and Rule of Evidence 103(a)(1). Id. 66.3(d).




Appellant James Reid’s PDR                                          Page 22
      And with all due respect, the Waco Court’s narrow ruling on

preservation of error represents so far a departure from the accepted and

usual course of judicial proceedings as to call for an exercise of this Court’s

power of supervision. Id. 66.3(f).

      For all these reasons, this Court should grant this ground for

discretionary review.




Appellant James Reid’s PDR                                              Page 23
2.    The imposition of consecutive sentences without a statement of
      reasons violates the Eighth Amendment prohibition against cruel
      and unusual punishments.


      In Johnson, this Court summarily rejected a general due process

challenge to the constitutionality of article 42.08 of the Code of Criminal

Procedure, which authorizes the imposition of consecutive sentences

without any guiding rules or principles. This Court has not addressed an

Eighth Amendment challenge to subsection (a) of this statute. Since

Johnson, the Supreme Court of the United States has promulgated extensive

Eighth Amendment jurisprudence. Applying this jurisprudence, Appellant

contends that the Eighth Amendment requires a trial court to provide a

statement of reasons for the imposition of consecutive sentences under

article 42.08(a). Here, the trial court’s imposition of consecutive sentences

without such an explanation violates the Eighth Amendment prohibition

against cruel and unusual punishments.




Appellant James Reid’s PDR                                            Page 24
A. The Eighth Amendment Eschews Arbitrariness and Unpredictability.


   The Eighth Amendment provides, “Excessive bail shall not be required,

nor excessive fines imposed, nor cruel and unusual punishments inflicted.”

U.S. CONST. amend. VIII (emphasis added).

      The Supreme Court has explained that a death penalty sentencing

scheme violates the Eighth Amendment prohibition against cruel and

unusual punishment if that scheme lacks guiding principles “to prevent the

penalty from being administered in an arbitrary and unpredictable

fashion.” See California v. Brown, 479 U.S. 538, 541, 107 S.Ct. 837, 93 L.Ed.2d

934 (1987). To prevent the imposition of a death sentence in “an arbitrary

and unpredictable fashion,” the sentencer’s discretion must be “controlled

by clear and objective standards so as to produce nondiscriminatory

application.” Gregg v. Georgia, 428 U.S. 153, 198, 96 S.Ct. 2909, 49 L.Ed.2d

859 (1976) (plurality opinion); see Penry v. Texas, 492 U.S. 302, 327, 109 S.Ct.

2934, 106 L.Ed.2d 256 (1989) (the constitution requires “carefully defined

standards that must narrow a sentencer’s discretion to impose the death

sentence”). This “also ensures the availability of meaningful judicial




Appellant James Reid’s PDR                                               Page 25
review, another safeguard that improves the reliability of the sentencing

process.” Brown, 479 U.S. at 543.

      The Supreme Court treats death penalty cases differently than non-

capital cases because “the penalty of death is qualitatively different from a

sentence of imprisonment, however long.” Woodson v. North Carolina, 428

U.S. 280, 305, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976). Admittedly,

consecutively-imposed sentences are not on the same level as death

sentences. However, they are qualitatively different from jury-assessed

sentences because cumulation orders significantly increase sentences that

jurors choose to assess.

B. The Second Circuit Has Required a Statement of Reasons.

      The Second Circuit has held that under certain circumstances a

federal district judge should be required to explain his reasons for

imposing consecutive sentences. United States v. Golomb, 754 F.2d 86, 90 (2d

Cir. 1985). Golomb was a first-offender whose aggregate term of years on

eleven counts amounted to twenty-six years. Id. at 90-91. The maximum

sentence imposed was five years on a charge of receipt of burglary

proceeds. Id. at 89. The Second Circuit held that the circumstances of his




Appellant James Reid’s PDR                                            Page 26
case required a statement of reasons from the trial judge to justify the

consecutive sentences. Id. at 91.

      Appellant contends that in a case such as this, just as in Golomb, a

statement of reasons should be required from the trial court to justify the

imposition of consecutive sentences to “ensure[ ] the availability of

meaningful judicial review.” Brown, 479 U.S. at 543.

C. Texas Appellate Courts Have Granted Unbridled Discretion.

      Notwithstanding the concerns expressed in Brown and similar cases,

Texas appellate courts have invested trial courts with absolute discretion in

the arena of consecutive sentences. Appellant insists that this is

inconsistent with the requirements of the Eighth Amendment.

      This Court has repeatedly held that a trial court’s decision to

cumulate sentences is “a normative, discretionary function” that does not

depend on any particular findings or standards. Beedy v. State, 250 S.W.3d

107, 110 (Tex. Crim. App. 2008); Barrow v. State, 207 S.W.3d 377, 380 (Tex.

Crim. App. 2006). The decision to cumulate sentences, where authorized by

law, has been characterized as virtually “unassailable.” Beedy, 250 S.W.3d

at 110. The Fourteenth Court of Appeals has described the trial court’s




Appellant James Reid’s PDR                                            Page 27
discretion as “absolute.” Nicholas v. State, 56 S.W.3d 760, 765 (Tex. App.—

Houston [14th Dist.] 2001, pet. ref’d).

      This unbridled discretion is inconsistent with the requirements of the

Eighth Amendment.

D. Trial Courts Should Be Required to Give Reasons.

      The approach endorsed by Texas appellate courts for consecutive

sentences violates the Eighth Amendment prohibition against cruel and

unusual punishments because: (1) it allows the cumulation decision to be

made in an arbitrary and unpredictable fashion; cf. Brown, 479 U.S. at 541;

(2) it fails to provide “clear and objective standards so as to produce

nondiscriminatory application” of the cumulation decision; cf. Gregg, 428

U.S. at 198; (3) it fails to provide “carefully defined standards that must

narrow a sentencer’s discretion” in imposing consecutive sentences; cf.

Penry, 492 U.S. at 327; and (4) it denies a criminal defendant’s right to

“meaningful judicial review” of the cumulation decision. Cf. Brown, 479

U.S. at 543.

E. Johnson did not address the Eighth Amendment.

      In Johnson, this Court summarily addressed the constitutionality of

article 42.08 in 1973. The Court explicitly rejected a contention grounded in


Appellant James Reid’s PDR                                            Page 28
due process that article 42.08 2 “could be constitutional only if certain

standards are set forth to guide the court in the exercise of its discretion.”

Johnson v. State, 492 S.W.2d 505, 506 (Tex. Crim. App. 1973). However,

Johnson was decided before the Supreme Court developed its Eighth

Amendment jurisprudence cited above. More importantly, this Court has

never addressed an Eighth Amendment challenge to article 42.08(a).3

Therefore, Appellant asks the Court to reconsider Johnson in view of the

Supreme Court’s subsequent Eighth Amendment jurisprudence.




2
        Article 42.08(a) (which is the focus of Appellant’s challenge) provides in relevant
part:

        (a) When the same defendant has been convicted in two or more cases,
        judgment and sentence shall be pronounced in each case in the same
        manner as if there had been but one conviction. Except as provided by
        Sections (b) and (c) of this article, in the discretion of the court, the
        judgment in the second and subsequent convictions may either be that the
        sentence imposed or suspended shall begin when the judgment and the
        sentence imposed or suspended in the preceding conviction has ceased to
        operate, or that the sentence imposed or suspended shall run concurrently
        with the other case or cases, and sentence and execution shall be
        accordingly.

TEX. CODE CRIM. PROC. art. 42.08(a).

3
       The Court did address many years ago an Eighth Amendment challenge to the
part of article 42.08 that is now codified as article 42.08(b), which requires the
imposition of consecutive sentences when a person commits an offense while serving a
prison sentence for a different offense. See Baird v. State, 455 S.W.2d 259, 259 (Tex. Crim.
App. 1970).


Appellant James Reid’s PDR                                                          Page 29
F. The Court Should Grant Review.

      The Court should grant review of this issue for two of the reasons

listed in Rule 66.3. See TEX. R. APP. P. 66.3.

      The issue of whether the Eighth Amendment requires a trial court to

provide reasons for imposing consecutive sentences constitutes an

important question of state or federal law that has not been, but should be,

settled by this Court. Id. 66.3(b).

      The Waco Court’s decision appears to conflict with the applicable

Eighth Amendment decisions of the Supreme Court of the United States.

Id. 66.3(c).

      For both reasons, this Court should grant this ground for

discretionary review.




Appellant James Reid’s PDR                                           Page 30
                                 Prayer

      WHEREFORE, PREMISES CONSIDERED, Appellant James Reid asks

the Court to: (1) grant review on the issues presented in this petition for

discretionary review; and (2) grant such other and further relief to which

he may show himself justly entitled.

                                        Respectfully submitted,



                                          /s/ Alan Bennett
                                        E. Alan Bennett
                                        SBOT #02140700
                                        Counsel for Appellant

                                        Sheehy, Lovelace & Mayfield, P.C.
                                        510 N. Valley Mills Dr., Ste. 500
                                        Waco, Texas 76710
                                        Telephone:        (254) 772-8022
                                        Fax:        (254) 772-9297
                                        Email:      abennett@slmpc.com




Appellant James Reid’s PDR                                          Page 31
                        Certificate of Compliance


      The undersigned hereby certifies, pursuant to Rule of Appellate

Procedure 9.4(i)(3), that this computer-generated document contains 3,897

words, excluding those parts excluded by Rule 9.4(i)(1).



                                           /s/ Alan Bennett
                                         E. Alan Bennett


                             Certificate of Service

      The undersigned hereby certifies that a true and correct copy of this

petition was served electronically on November 30, 2015 to: (1) counsel for

the State, Sterling Harmon, sterling.harmon@co.mclennan.tx.us; and (2) the

State Prosecuting Attorney, lisa.mcminn@SPA.texas.gov.



                                           /s/ Alan Bennett
                                         E. Alan Bennett




Appellant James Reid’s PDR                                          Page 32
                             Appendix



Opinion of Waco Court of Appeals:

      Reid v. State, No. 10-14-00107-CR, 2015 WL 6584361 (Tex. App.—
      Waco Oct. 29, 2015, pet. filed)




Appellant James Reid’s PDR                                    Page 33
                                 IN THE
                         TENTH COURT OF APPEALS

                                No. 10-14-00107-CR

JAMES REID,
                                                          Appellant
v.

THE STATE OF TEXAS,
                                                          Appellee



                           From the 54th District Court
                            McLennan County, Texas
                           Trial Court No. 2012-672-C2


                          MEMORANDUM OPINION


      A jury convicted Appellant James Reid of three counts of indecency with a child

by contact. The child, S.M., was the daughter of Reid’s girlfriend when the offenses

allegedly occurred. By the time of trial, Reid and S.M.’s mother had married. The jury

assessed Reid’s punishment at sixteen years’ imprisonment and a $5,000 fine for each

count. The trial court ordered the sentences to run consecutively. This appeal ensued.
                    Prior Convictions During Guilt-Innocence Phase

        In his first issue, Reid contends that the trial court abused its discretion by

admitting evidence of his prior convictions during the guilt-innocence phase.

        During the defense’s case-in-chief, Vennitta Swinnie testified that she had been

Reid’s next-door neighbor for twelve years. Over the years, she had gotten to know Reid

and his family members, and her son became like “family” to the children living with

Reid. The children would come to her house to visit after school, and she and her son

would go to Reid’s house to visit on a regular basis, “[e]very day basically.” Swinnie

stated that S.M. seemed to have a normal relationship with both her mother and Reid.

Reid and S.M.’s mother also have a daughter together, and Swinnie said that she seemed

to have a normal relationship with her parents. Swinnie did not observe any problems.

        Swinnie testified that in 2010 Reid and S.M.’s mother informed her of their

wedding plans. She stated that she talked to S.M. about the plans. The State objected,

however, when Reid’s counsel sought to question Swinnie about whether she had heard

any arguing between S.M. and someone else about the wedding and about whether S.M.

had made any threats about bringing these charges. The trial court held a conference in

chambers. During the conference, the State argued:

                      Your Honor, just for expediency sake, I think that this witness
        has opened the door to the prior. She’s saying she has a close relationship
        with him. She never saw anything wrong. She thought these people were
        family. I think we should be allowed to ask her, well, did he tell you he’s a
        sex offender? He’s a convicted sex offender. You were letting your kid go
        over there. And this is opinion testimony that he - - she’s close with him,
        that her kid goes over there, they’re like family, they talked about her
        wedding. I think that opens the door to his prior and whether or not she
        knew about it, to test her opinion of him.

Reid v. State                                                                           Page 2
                       Your Honor, also, the defense, in opening, said there’s no
        opportunity. There’s no opportunity for this offense because, um, there’s
        always people there, they visitation [sic] all the time, I think is the word the
        defense is using. I think that opens the door to the prior where he’s having
        - - he’s raping women with other people in the house, you know, when
        other people are asleep. So, I think it goes to opportunity, too. I mean, she’s
        saying she’s close with him. I think we should be able to say, well, did he
        tell you he has a prior? He’s a registered sex offender, Your Honor. He’s
        registering at the address she lived next door to. And now she’s coming
        here acting like he’s - - you know, he’s a great dad.

The trial court stated, “I will lift the Order in Limine with regard to the prior conviction.”

        The State then began its cross-examination of Swinnie, during which the State

asked her if she was aware that Reid was a convicted sex offender before this case. Reid

objected: “Your Honor, at this time, the State [sic] would object under Rule 404(b). This

is extraneous offense evidence that should not be - - the defendant objects - - defendant

objects under 404(b) and, uh, under 403, the balancing test. The probative value does not

outweigh the prejudicial effect.” The trial court overruled the objection. Swinnie replied

that she did not know that Reid was a convicted sex offender at the time but that she

found out about it years later. Nevertheless, she did not think her son was at risk. The

State then asked Swinnie what she knew about Reid’s “prior”? Reid again objected:

“Your Honor, we would re-urge the objection and ask for a running objection on this

issue.” The trial court overruled the objection but stated, “I will allow a running

objection.” Swinnie replied that she did not know anything about Reid’s prior, but she

then reiterated that it did not change her opinion as to whether her son was safe.

        After Swinnie testified, S.M.’s brother, J.M., testified on cross-examination that he

was aware that Reid was a registered sex offender but that he did not know very much


Reid v. State                                                                              Page 3
about the prior case and that Reid had never talked to him about it. The State specifically

questioned J.M. in part as follows:

               Q      So, were you aware that there was a houseful of people when
        he did those offenses?

                A    No, ma’am. …

               Q     Were you aware that there was [sic] multiple victims in the
        old case?

                A    No, ma’am, I was not.

                ….

            Q       Um, were you aware that it had to do with defenseless drunk
        women that were passed out?

                A    No, ma’am, I didn’t.

Reid did not object to this testimony by J.M.

        Reid also did not object when the State then questioned his son Michael

extensively about the prior conviction. Only after Michael’s testimony and a short recess

did Reid’s counsel state, “Your Honor, the defense moves for a mistrial at this time based

on the highly prejudicial effect of the - -“ At that point, the trial court denied the request.

        After an intervening witness, S.M.’s mother then also testified extensively about

Reid’s prior conviction during cross-examination by the State. The State questioned

S.M.’s mother in part as follows:

                Q    Okay. What did the defendant tell you that he did?

                A     He told me - - well, he didn’t tell me, Ms. Finkinbinder put a
        flyer in my car seat when I was going through my divorce and letting me
        know what he had done.


Reid v. State                                                                            Page 4
               Q      Okay. So, have you talked to the defendant about his prior
        offense - -

                A     Yes, I have.

                Q     - - when he was 28 years old? And what did he say?

              A      He said that he was set up with two older girls about - - you
        know, he got drunk and they set him up on it.

                Q     Okay. So now he was set up?

                A     Yes.

                Q     You’re aware he had a jury trial?

                A     I was not there. I didn’t know him at the time.

                Q     Have you talked about the offense with your husband?

                A     Yes.

                Q     The person you let around your children unsupervised?

                A     Yes.

                Q     And what did he tell you about the offense?

              A      He told me what had happened. He told me that he was set
        up with two girls that did it. And I talked to his probation officer from, uh,
        New York.

               Q       Okay. And - - so you talked to his probation officer in New
        York; is that correct?

               A      Yes, because I had CPS called on me. And they come down
        there and questioned my kids about him living there. And [S.M.] was one
        of them there, too, when they questioned her about - - about, you know,
        his past and stuff. And she knew the past.

              Q      And you were told at that point he was at a high risk to re-
        offend because he wouldn’t take responsibility?


Reid v. State                                                                            Page 5
Only then did Reid “object to the relevance and the materiality of this line of questioning

and to this specific question.” Reid also re-urged his 404(b) and 403 objection. The trial

court overruled the objections, and the State asked S.M.’s mother several more questions

about the prior conviction.

        Finally, after both sides rested and closed, Reid’s counsel stated that he would

“like to elaborate and re-urge the Motion for Mistrial and point out that the specific

reason and basis for the Motion for Mistrial is that, uh, the extraneous offense evidence

was allowed.” Following a brief discussion, the trial court denied the request.

        First, Reid forfeited his complaint as to J.M.’s, Michael’s, and the unobjected-to

portion of S.M.’s mother’s testimony. To preserve a complaint for appellate review, the

record must show that the appellant made the complaint to the trial court by a timely

request, objection, or motion that stated the grounds for the ruling that the appellant

sought from the trial court with sufficient specificity to make the trial court aware of the

complaint, unless the specific grounds were apparent from the context. TEX. R. APP. P.

33.1(a)(1)(A). Here, Reid failed to make his complaint to the trial court during J.M.’s,

Michael’s, and most of S.M.’s mother’s testimony; therefore, Reid failed to preserve his

complaint as to that testimony.

        Reid was granted a running objection when the State questioned Swinnie about

his prior conviction, but the running objection did not apply to the testimonies of J.M.,

Michael, and S.M.’s mother. See Sattiewhite v. State, 786 S.W.2d 271, 284 n.4 (Tex. Crim.

App. 1989).     Courts have allowed running objections to eliminate redundant and

disruptive individual objections, promoting an orderly progression of the trial. Id. But

Reid v. State                                                                         Page 6
use of running objections is limited. Id.; see, e.g., Goodman v. State, 701 S.W.2d 850, 863

(Tex. Crim. App. 1985), overruled in part on other grounds by Hernandez v. State, 757 S.W.2d

744, 751-52 n.15 (Tex. Crim. App. 1988) (holding “running objection to all questions

concerning the offense, the nature of the offense, and everything related to the offense”

made during State’s cross-examination of one witness was not sufficient to preserve

complaint with respect to different witness who testified after intervening testimony of

six other witnesses); White v. State, 784 S.W.2d 453, 461 (Tex. App.—Tyler 1989, pet. ref’d)

(allowing running objection to cover testimony of one witness but not that of five

subsequent witnesses); cf. Ford v. State, 919 S.W.2d 107, 112-14 (Tex. Crim. App. 1996)

(holding running objection as “to any and all impact evidence” and “to all witnesses”

testifying to such was sufficient to preserve claim). “[A]n advocate who lodges a running

objection should take pains to make sure it does not encompass too broad a reach of

subject matter over too broad a time or over different witnesses.” Sattiewhite, 786 S.W.2d

at 284 n.4. Thus, Reid had the responsibility to preserve his complaint by making the

proper objections at the time J.M., Michael, and S.M.’s mother took the stand or when

they began to testify to the objectionable extraneous offenses. See id.; see also Tunmire v.

State, Nos. 12-03-00231-CR, 12-03-00232-CR, 2004 WL 2008661, at *3 (Tex. App.—Tyler

Sept. 8, 2004, pet. ref’d) (mem. op., not designated for publication). Reid failed to do so.

           Likewise, Reid’s motion for mistrial did not preserve his complaint as to any of the

testimony about his prior conviction.1 Under rule 33.1(a)(1), a motion for mistrial must




1   Reid does not specifically complain that the trial court erred in denying his motion for mistrial.

Reid v. State                                                                                            Page 7
be both timely and specific. TEX. R. APP. P. 33.1(a)(1); Griggs v. State, 213 S.W.3d 923, 927

(Tex. Crim. App. 2007). A motion for mistrial is timely only if it is made as soon as the

grounds for it become apparent. Griggs, 213 S.W.3d at 927. Here, Reid did not move for

a mistrial until after both J.M. and Michael had finished testifying about Reid’s prior

conviction without objection, and Reid re-urged his motion for mistrial only after both

sides had rested and closed; therefore, it was untimely and failed to preserve Reid’s

complaint.

        Second, because Reid forfeited his complaint as to J.M.’s, Michael’s, and most of

S.M.’s mother’s testimony by failing to make a proper complaint to the trial court, error

(if any) in allowing the State to question Swinnie about Reid’s prior conviction was cured

even though Reid objected when the State questioned Swinnie about his prior conviction.

“An error [if any] in the admission of evidence is cured where the same evidence comes

in elsewhere without objection.” Lane v. State, 151 S.W.3d 188, 193 (Tex. Crim. App. 2004)

(quoting Valle v. State, 109 S.W.3d 500, 509 (Tex. Crim. App. 2003)); see also Leday v. State,

983 S.W.2d 713, 718 (Tex. Crim. App. 1998) (“Our rule . . . is that overruling an objection

to evidence will not result in reversal when other such evidence was received without

objection, either before or after the complained-of ruling.”).

        An exception to this general rule occurs when the accused offers evidence in an

effort “to meet, destroy, or explain” the complained-of testimony. Leday, 983 S.W.2d at

719. Reid argues that the exception applied here, excusing his responsibility to have

made the proper objections at the time J.M., Michael, and S.M.’s mother took the stand or

when they began to testify to the objectionable extraneous offenses. We disagree. The

Reid v. State                                                                           Page 8
testimony of J.M., Michael, and S.M.’s mother that Reid failed to complain about was not

evidence that he offered in an effort “to meet, destroy, or explain” the testimony of

Swinnie, which he did complain about. Rather, most of the testimony of J.M., Michael,

and S.M.’s mother about Reid’s prior conviction was brought out on cross-examination

by the State and revealed Reid’s prior conviction in even more damaging detail.

Therefore, the exception does not apply in this case.

        For the foregoing reasons, we overrule Reid’s first issue.

                                    “Backdoor Hearsay”

        In his second issue, Reid contends that the trial court abused its discretion by

admitting “backdoor hearsay” regarding his alleged risk to re-offend. This issue concerns

the following exchange:

               Q       [(By Prosecutor)] And you were told at that point he was at a
        high risk to re-offend because he wouldn’t take responsibility?

                     [Defense Counsel]: Your Honor, I’m going to object to the
        relevance and the materiality of this line of questioning and to this specific
        question.

                      THE COURT: Overruled.

                      [Defense Counsel]: We re-urge our 404(b) and 403 objection,
        Your Honor.

                      THE COURT: Overruled.

               Q       (BY [Prosecutor]) You’re aware that he was determined to be
        a high risk to re-offend?

                     [Defense Counsel]: Your Honor, that’s hearsay that she’s
        incorporating into the questions. Again, that’s an improper question.

                      THE COURT: Overruled.

Reid v. State                                                                            Page 9
              Q      (BY [Prosecutor]) Did your husband tell you that he was
        determined to be a high risk to re-offend?

                A    [(By S.M.’s mother)] Yes.

        Even if the trial court should not have overruled Reid’s objections, the admission

of the alleged hearsay statement was harmless. The admission of otherwise inadmissible

hearsay is non-constitutional error, which we disregard if the error did not affect the

appellant’s substantial rights. TEX. R. APP. P. 44.2(b); Moon v. State, 44 S.W.3d 589, 594-95

(Tex. App.—Fort Worth 2001, pet. ref’d). A substantial right is affected when the error

had a substantial and injurious effect or influence on the jury’s verdict. King v. State, 953

S.W.2d 266, 271 (Tex. Crim. App. 1997). The improper admission of evidence is not

reversible error if the same or similar evidence is admitted without objection at another

point in the trial. Lacaze v. State, 346 S.W.3d 113, 122 (Tex. App.—Houston [14th Dist.]

2011, pet. ref’d); see Brooks v. State, 990 S.W.2d 278, 287 (Tex. Crim. App. 1999).

        As discussed above, the State questioned the defense witnesses extensively on

cross-examination about Reid’s prior conviction.        The State also drew comparisons

between the prior conviction and the allegations in this case. For instance, the State

questioned Reid’s son Michael as follows:

                Q    Did he tell you there were three women?

                A    Yes, ma’am.

                Q    Did he tell you that he raped them when they were passed
        out?

                A    No, ma’am.


Reid v. State                                                                         Page 10
                 Q   So he denied that?

                 A   No, ma’am.

              Q      That’s my question: Did he deny raping women when they
        were passed out?

                 A   He - - he never opposed of saying he raped anyone.

                 Q   But he admitted to you?

                 A   No, ma’am.

                 Q   What did he say?

              A    He explained the situation on the night that it occurred of
        what happened. And what happened was there was jealousy from another
        woman because he didn’t want an encounter with both of them.

                 Q   Okay. So he takes no responsibility for that prior; is that
        right?

                 A   Obviously, he took some type of responsibility.

                 Q   Uh, he was found guilty by a jury.

                 A   Right.

                 Q   He took that responsibility.

                 A   Well, then, I guess he didn’t, ma’am.

                 Q   He called them “sluts.” Are you aware of that?

                 A   No, ma’am.

                 Q   So he hasn’t taken responsibility for that? Is that right?

                 A   I’m pretty sure he did. He did sentencing for it.

               Q      Well, a jury made him take responsibility. He never came into
        court like you did and pled guilty to anything; is that correct?


Reid v. State                                                                         Page 11
                A    I don’t know, ma’am.

               Q      And he’s telling you it was about jealous women making up
        stuff about him; is that right?

                A    Right. Yes, ma’am.

                Q    Three of them?

                A    Yes, ma’am.

                Q    You’re aware there was no violence in those offenses?

                A    Yes, ma’am.

                Q    Uh, there was no threats?

                A    Yes, ma’am.

                Q    They’re [sic] was no pain?

                A    Yes, ma’am.

                ….

                Q     Um, [S.M.] was not a prepubescent child. She was not a little
        girl that hadn’t gone through puberty. She was a teenage girl?

                A    Yes, ma’am.

               Q      Her body would have been pretty similar to the bodies of the
        girls he raped when he was 28; is that right?

                A    I don’t know, ma’am.

              Q      They were developed women. They were in their early
        twenties and [S.M.] was a developed, young teenager; is that right?

                A    She was a teenager. Yes, ma’am.




Reid v. State                                                                         Page 12
         In light of this similar evidence admitted without objection, we conclude that the

admission of the alleged hearsay statement was harmless. We overrule Reid’s second

issue.

                       Prior Convictions During Punishment Phase

         In his third issue, Reid contends that the trial court abused its discretion in

admitting evidence of prior convictions during the punishment phase. Specifically, Reid

argues that the State failed to connect the convictions to him.

         The indictment in this case contained the following enhancement allegation:

         And it is further presented in and to said Court that prior to the commission
         of the primary offense, on the 25th day of August A.D. 1990, in The Court
         of Onodago, County, New York, in Case Number 90-0974-1, the said
         JAMES REID was convicted of a felony, to-wit: Sexual Abuse and the said
         conviction became final prior to the commission of the primary offense[.]

During the punishment phase, the State read the enhancement allegation in open court

before the jury. Reid pleaded “Not True” to the enhancement allegation. The State then

offered into evidence State’s Exhibit 1, described as the “Penitentiary Packet” for

Indictment No.: 90-0974-1, The People of the State of New York v. James Reid. Reid

objected: “We would object on lack of proper predicate, Your Honor, as to relevance.”

The State replied: “Your Honor, the State’s Exhibit Number 1 is self-authenticating. It is

relevant and it involves the same James Reid. Um, all of his family has already testified

that he has this conviction. And we could tender to the Court if you would like to see it.”

The trial court admitted State’s Exhibit 1.         The State, however, abandoned the

enhancement allegation.



Reid v. State                                                                            Page 13
        Again, even if the trial court abused its discretion in admitting State’s Exhibit 1,

the error was harmless. Error in admitting evidence concerning extraneous offenses is

reviewed under the standard for non-constitutional error, which we disregard if the error

did not affect the appellant’s substantial rights. TEX. R. APP. P. 44.2(b); Higginbotham v.

State, 356 S.W.3d 584, 592 (Tex. App.—Texarkana 2011, pet. ref’d).

        In this case, as discussed above, the jury heard substantial testimony about Reid’s

prior conviction during the guilt/innocence phase.           Furthermore, the following

instruction was included in the punishment charge:

                You are instructed that the Defendant may be assessed punishment
        only for the offenses for which you have found him guilty.
                You are instructed that certain evidence has been admitted before
        you regarding the Defendant having been allegedly involved in other acts
        or act, if any, other than the ones for which he is now on trial. You cannot
        consider said evidence unless you find and believe beyond a reasonable
        doubt that the Defendant committed such other acts or act, if any were
        committed.
                In the event you have a reasonable doubt as to whether the
        Defendant committed the other acts or act, if any was committed, after
        considering all of the evidence before you and these instructions, you will
        not consider said acts or act for any purpose.
                Such evidence was admitted before you to assist you, if it does, in
        determining an appropriate punishment for the offenses for which you are
        assessing punishment.
                Therefore, if you believe such evidence, if any, beyond a reasonable
        doubt, you may not impose an additional punishment upon the Defendant
        for said acts or act, if any, but you may consider such evidence in
        determining an appropriate punishment for the offenses for which you are
        assessing punishment.

We generally presume that the jury follows the trial court’s instructions in the manner

presented. Colburn v. State, 966 S.W.2d 511, 520 (Tex. Crim. App. 1998). For these reasons,




Reid v. State                                                                          Page 14
we hold that any error in admitting State’s Exhibit 1 was harmless, and we overrule Reid’s

third issue.

                                  Consecutive Sentences

        In his fourth issue, Reid contends that the imposition of consecutive sentences

without a statement of reasons constitutes cruel and unusual punishment in violation of

the Eighth Amendment.

        Article 42.08 of the Code of Criminal Procedure vests the trial court with discretion

to order concurrent or consecutive sentences. See TEX. CODE CRIM. PROC. ANN. art. 42.08

(West Supp. 2014). Reid acknowledges that the Court of Criminal Appeals in Johnson v.

State, 492 S.W.2d 505 (Tex. Crim. App. 1973), rejected a contention that article 42.08 “could

be constitutional only if certain standards are set forth to guide the court in the exercise

of its discretion.” Id. at 506. Reid argues, however, that Johnson must be reconsidered in

view of subsequent U.S. Supreme Court holdings regarding death penalty jurisprudence.

But the Court of Criminal Appeals has been given the opportunity to overrule Johnson

and has declined to do so. See Barrow v. State, 207 S.W.3d 377, 381 (Tex. Crim. App. 2006).

In Barrow, the court stated, “The Legislature has charged the trial court with the

determination of whether to cumulate, and the trial court is free to make this

determination so long as the individual sentences are not elevated beyond their

respective statutory maximums.” Id. at 382. Absent further guidance from the Court of

Criminal Appeals, we thus hold that the imposition of consecutive sentences without a

statement of reasons does not constitute cruel and unusual punishment in violation of

the Eighth Amendment. We overrule Reid’s fourth issue.

Reid v. State                                                                         Page 15
        Having overruled all of Reid’s issues, we affirm the trial court’s judgment.




                                                 REX D. DAVIS
                                                 Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Affirmed
Opinion delivered and filed October 29, 2015
Do not publish
[CR25]




Reid v. State                                                                          Page 16
