No. 14-07-00854-CR
Opinion filed August 21, 2008. DO NOT PUBLISH — Tex. R. App. P. 47.2(b).
On Appeal from the 212th District Court Galveston County, Texas, Trial Court Cause No. 02CR1306.
Panel consists of Justices YATES, ANDERSON, and BROWN.
JEFF BROWN, Justice.
Laurie Lee Salley's probation was revoked and she was sentenced to 10 years in the Institutional Division of the Texas Department of Criminal Justice. Salley asserts that the trial court erred by (1) retaliating against her for evidence and arguments presented by her counsel, (2) denying her a neutral and detached magistrate, and (3) imposing a cruel, unusual, or excessive punishment. We affirm.
I. PROCEDURAL AND FACTUAL BACKGROUND
On January 15, 2004, Laurie Lee Salley was convicted by a jury of sexual assault of a child. This offense is a second-degree felony, punishable by two to 20 years in prison, and a fine of up to $10,000. Punishment was assessed at 10-years confinement and a fine of $10,000. The sentence was probated as to the confinement, subject to various conditions, including the condition that Salley shall "[c]ommit no offense against the laws of the State of Texas or of any other State, the United States or any governmental entity." Salley appealed, and this court affirmed. Salley v. State, No. 14-04-00185-CR, 2005 WL 2398084 (Tex.App.-Houston [14th Dist.] Sept. 8, 2005) (mem. op.) (not designated for publication). On June 16, 2006, Salley was cited in Hamilton County for the state-jail felony of driving while intoxicated (DWI) with a child passenger. A jury found Salley guilty of this offense and the court assessed punishment at two-years confinement. The court also ordered that Salley's driver's license be suspended for two years and ordered Salley to attend substance-abuse counseling. The punishment was suspended as to the confinement, and the court placed Salley on community supervision for five years. Subsequently, the State filed a motion to revoke the community supervision granted Salley in 2004, alleging that Salley violated the conditions of that community supervision by committing the offense of DWI with a child passenger, failing to pay the fine as ordered, and failing to pay the reimbursement to Galveston County for compensation of appointed counsel as ordered. At the hearing on the motion to revoke community supervision, Salley pleaded true to the allegation that she was convicted of a DWI. The State entered a certified copy of the judgment of conviction. The State called one witness, Salley's community-supervision officer, who testified that Salley was $377.50 in arrears for payment of the fine and fees. Salley took the stand in her own defense. She testified that the night before she was cited for DWI with a child passenger, she took Fioricet with codeine for a migraine. She had a prescription for this medication. She woke up groggy, but explained, "Migraines leave me groggy with or without medication." She testified, "I felt tired, but I didn't feel drugged." Salley was driving with her daughter when they were involved in a one-car accident on a gravel road. Salley explained that graded gravel roads "can be fairly slick in places." She thought she "hit a rock and it fishtailed [her] car," sending her "right into the guardrail." Salley said she was "hysterical" following the incident. She was given a field-sobriety test, and explained that she was "in flip-flop shoes on a gravel road" and that she did not have "very good balance" because of a previous knee surgery and back problem. Salley further testified that she regularly saw her probation officer in Hamilton County, and that she attended counseling and a substance-abuse-recovery group. On cross, Salley admitted that she did not bring any medical documentation of her history of migraines, knee surgery, or back injury. She testified that at the time of the incident, she had prescriptions for Paxil, Adavan, Tylenol 3, a Nicotrol inhaler, and Fioricet. Two empty pill bottles were found in her vehicle: a 90-count bottle for Tylenol 3 and a 40-count bottle for Adavan. Salley testified that the remaining pills from those bottles were at home, and that she had emptied them because she thought her probation officer would require the empty bottles. Salley testified that she gave a urine sample and blew into the breathalyzer after the incident, but did not give a blood sample because she does not like needles. Finally, a pharmacist reviewed the report on Salley's urinalysis and testified that Salley had not taken Adavan for at least 24 hours. The urinalysis results showed both morphine and codeine in Salley's system, but the pharmacist explained that both were found "because morphine is a metabolited codeine." The pharmacist opined that Salley could have taken either the Fioricet or Tylenol 3 any time within the last 24 hours to produce such a result. The trial court found the first allegation in the motion to revoke to be true. Salley had already pleaded true to this allegation — DWI with a child passenger. Salley's community supervision was revoked and she was sentenced to 10-years confinement in Institutional Division of the Texas Department of Criminal Justice. This appeal followed. II. ANALYSIS
In reviewing a probation revocation, we examine the evidence in the light most favorable to the trial court's findings to determine whether the trial court abused its discretion. Cardona v. State, 665 S.W.2d 492, 493-94 (Tex.Crim.App. 1984). The State must prove, by a preponderance of the evidence, that Salley violated the conditions of her probation in order to succeed on a motion to revoke probation. See Cobb v. State, 851 S.W.2d 871, 873 (Tex.Crim.App. 1993). In its motion to revoke, the State alleged that Salley violated three conditions of her community supervision, including the allegation that she had been convicted of DWI with a child passenger. During the revocation hearing, the State entered a certified copy of the judgment finding Salley guilty of this offense. Salley pleaded true to this allegation. A plea of true, standing alone, is sufficient to support the revocation of community supervision. Cole v. State, 578 S.W.2d 127, 128 (Tex.Crim.App. [Panel Op.] 1979). Salley then took the stand and testified about the offense. After closing arguments, the court found the DWI-with-a-child-passenger allegation to be true. Examining the evidence in the light most favorable to the trial court's findings, and considering Salley's conviction and plea, this was not an abuse of discretion. Salley asserts that the trial court erred for three reasons. First, Salley argues that the trial court erred by sentencing her in reaction to, and in retaliation for, presenting evidence and arguments in her own defense. We disagree. Salley correctly argues that due process requires that she receive "an opportunity to be heard and to present evidence." Gagnon v. Scarpelli, 411 U.S. 778, 786 (1973). Although a final conviction for DWI with a child passenger had been entered by the State, and although Salley pleaded true to this allegation, the judge allowed her to testify about the underlying facts. Then, after the trial court granted the motion to revoke, it admonished Salley, saying, "You got sentenced today because of your own actions and your own responses to those actions." Salley contends that this admonishment meant that the court was punishing Salley for presenting evidence in her own defense. Salley further argues that the trial court had no jurisdiction to punish the conviction of an offense wholly committed within another county. But she cites no authority for this contention, and does not acknowledge that the trial court was not issuing a sentence for the DWI with a child conviction. Instead, the court was merely enforcing a condition to Salley's previous community supervision, which required that Salley must "[c]ommit no offense against the laws of the State of Texas or of any other State, the United States or any governmental entity." Second, Salley asserts that the trial court erred by denying her the benefit of a neutral and detached magistrate in violation of the United States Constitution and the Texas Constitution. We disagree. Salley relies upon Jefferson v. State, where the trial judge had previously told the appellant that he would receive a 20-year sentence for a probation violation, and following a probation violation, the trial judge "assessed [the] promised punishment, apparently to maintain his credibility." 803 S.W.2d 470, 472 (Tex.App.-Dallas 1991, pet. ref'd.). Such a procedure is not allowed because "(1) it effectively excludes evidence relevant to punishment; (2) it precludes the judge from considering the full range of punishment prescribed by law; (3) hence, it deprives the defendant of a fair and impartial tribunal. . . ." Id. (citing Gagnon v. Scarpelli, 411 U.S. 778, 786 (1973)). During closing argument, Salley's counsel stated that Salley's underlying offense had a victim only in the most "technical sense." The court responded by correcting counsel; however, this does not amount to a denial of a neutral and detached magistrate. We see no evidence that the judge excluded evidence relevant to punishment or did not consider the full range of punishment prescribed by law. Contrary to Salley's assertion, the record reflects no evidence that the trial judge enforced "something akin to a `zero tolerance' policy." Finally, Salley contends that the trial court erred by imposing a punishment which was excessive. We disagree. Salley argues, and we agree, that sentencing must follow well-established principles of proportionality of punishment to the offense. See Solem v. Helm, 463 U.S. 277, 290 (1983). The 10-year punishment the trial court assessed was well within the two-to-20-year range for the underlying offense. Rather, she argues that the sentencing range made available by the Legislature violates the Eighth Amendment's ban on cruel, unusual, and excessive punishments. "[A] court's proportionality analysis under the Eighth Amendment should be guided by objective criteria, including (i) the gravity of the offense and the harshness of the penalty; (ii) the sentences imposed on other criminals in the same jurisdiction; and (iii) the sentences imposed for commission of the same crime in other jurisdictions." Id. at 292. Salley downplays the gravity of the offense by noting that the sexual assault of a child by an adult woman was not considered a crime under English common law and that the hazards of sexual intercourse fall heavily and unequally on females. She also mentions that it is unfair that offenders within three years of a victim's age are treated differently from those offenders whose victims are more distant in age. Finally, she contends that a 10-year sentence is cruel because "offenses of this kind rarely bring an [outcry] from the victims." We are unconvinced by Salley's arguments and overrule her third issue. Accordingly, we affirm the judgment of the trial court.