                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                              NO. 02-12-00238-CR


RODERICK A. WILLIAMS                                                   APPELLANT

                                         V.

THE STATE OF TEXAS                                                         STATE


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      FROM COUNTY CRIMINAL COURT NO. 5 OF TARRANT COUNTY

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                         MEMORANDUM OPINION 1

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      A jury convicted Appellant Roderick A. Williams of family violence assault,

and the trial court sentenced him to 365 days’ confinement. In his sole issue,

Appellant argues that his sentence was excessive and disproportionate,

considering the actions for which he was convicted.        Because the trial court

committed no reversible error, we affirm the trial court’s judgment.


      1
       See Tex. R. App. P. 47.4.
      Appellant was accused of pulling his wife’s hair and slapping her on the

cheek. The jury returned a general verdict of guilty. The complainant testified

that she had been angry because Appellant had not gone to the hospital with her

when she gave birth to their son. After she returned home, she was feeding the

baby and lashed out at Appellant, calling him a name.            She testified that

Appellant had responded by grabbing her hair and slapping her. She testified

that the slap hurt. She responded by calling 911, and she also called Appellant’s

parole officer. The complainant admitted that she had told the parole officer that

she wanted Appellant to go back to jail, but she also testified that by the time of

trial she was no longer angry with him and really did not want him prosecuted.

Although the original reports suggested that she had been holding the baby at

the time Appellant slapped her, at trial, she testified that she had already put the

baby down before Appellant slapped her.

      The State proved that Appellant had an extensive history of prior felony

convictions, including a prior assault that had been alleged as family violence.

The record reflected, and the trial court found, that the family violence allegation

had been waived in that prior case.

      Appellant was allowed to present argument regarding the punishment that

he thought was appropriate. Appellant argued, essentially, that the punishment

should fit the crime and that the crime was minor. He also focused on the fact

that the complainant did not want to prosecute him but, rather, wanted to marry

him. Appellant did not specifically argue proportionality.


                                         2
      Although the judgment states that “the Defendant being asked by the Court

if he had any sufficient reason why sentence should not be pronounced against

him failed to give such reason,” the reporter’s record contradicts this statement.

The trial court did not ask Appellant that question or any similar question to give

him the opportunity to raise the issue he raises on appeal. Thus the trial court

contravened article 42.07 of the code of criminal procedure. 2

      The State argues that Appellant failed to preserve his complaint.          The

Texas Court of Criminal Appeals instructs us that “[t]he requirement that an

objection be raised in the trial court assumes that the appellant had the

opportunity to raise it there,” 3 and that the idea that “issues of error preservation

are systemic in first-tier review courts,” stated in its 2009 case Menefee v. State 4

and elsewhere, “means only that a court of appeals may not reverse a judgment

of conviction without first addressing any issue of error preservation.” 5 “Given




      2
       See Tex. Code Crim. Proc. Ann. art. 42.07 (West 2006).
      3
       Burt v. State, 396 S.W.3d 574, 577 (Tex. Crim. App. 2013).
      4
       287 S.W.3d 9, 18 (Tex. Crim. App. 2009).
      5
       Meadoux v. State, 325 S.W.3d 189, 193 n.5 (Tex. Crim. App. 2010), cert.
denied, 131 S. Ct. 1827 (2011); see also Gipson v. State, 383 S.W.3d 152, 159
(Tex. Crim. App. 2012) (relying on quote cited above in reversing case in which
appellate court had not addressed the State’s procedural challenge before
reversing the case on sufficiency grounds).



                                          3
our disposition of [this] case” 6 on the merits of Appellant’s issue, “there is no

need for us to address error preservation.” 7

       In addressing Eighth Amendment proportionality complaints, “[w]e first

make a threshold comparison of the gravity of the offense against the severity of

the sentence. We are to judge the gravity of the offense in light of the harm

caused or threatened to the victim or society, and the culpability of the offender.” 8

Only if we decide that the sentence is disproportionate at this threshold level do

we further compare the sentence to sentences imposed on other criminals in the

same jurisdiction and sentences imposed for the same crime in other

jurisdictions. 9

       The statutory range of punishment for the Class A misdemeanor is

confinement for up to 365 days and a fine up to $4000. 10 Given Appellant’s

criminal history and the circumstances of this family violence assault—the

complainant had recently given birth and there was some evidence that the infant


       6
        Id.
       7
        Id.
       8
        Moore v. State, 54 S.W.3d 529, 542 (Tex. App.—Fort Worth 2001, pet.
ref’d) (citing Solem v. Helm, 463 U.S. 277, 291–92, 103 S. Ct. 3001, 3010
(1983); McGruder v. Puckett, 954 F.2d 313, 316 (5th Cir.), cert. denied, 506 U.S.
849 (1992)).
       9
        Id. at 541.
       10
           See Tex. Penal Code Ann. §§ 12.43(a), 22.01(a) (West 2011).



                                          4
was in her arms during the assault—we hold that the sentence is not

disproportionate.

      We overrule Appellant’s sole issue and affirm the trial court’s judgment.



                                                  /s/ Lee Ann Dauphinot
                                                  LEE ANN DAUPHINOT
                                                  JUSTICE

PANEL: DAUPHINOT, WALKER, and MCCOY, JJ.

WALKER, J., filed a concurring opinion in which MCCOY, J., joins.

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

DELIVERED: April 24, 2014




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