Affirmed and Memorandum Opinion filed April 9, 2015.

In The

Fourteenth Court of Appeals

NO. 14-14-00704-CR

DAVID GLYNN NUNN, JR, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 337th District Court

Harris County, Texas

Trial Court Cause No. 1420647

M E M O R A N D U M O P I N I O N

Appellant David Glynn Nunn, Jr. appeals his conviction for fraudulent use 

or possession of ten or more items of identifying information of elderly 

individuals. See Tex. Penal Code Ann. § 32.51(b)(1); (c)(1) (West 2011). In two 

issues appellant argues (1) the trial court erred in denying his motion to withdraw 

guilty plea; and (2) the assessment of an 18-year sentence was grossly 

disproportionate to appellant’s role in the commission of the offense. We affirm.
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BACKGROUND

After being admonished in writing pursuant to article 26.13 of the Texas 

Code of Criminal Procedure, appellant entered a plea of guilty to the offense of 

possession of more than ten items of identifying information of elderly 

individuals.1 Appellant also waived the right to have a court reporter record his 

plea hearing. The trial court accepted appellant’s plea and ordered a presentence 

investigation report (PSI) prepared.

After preparation of the PSI the trial court held a hearing on punishment. At 

the beginning of the hearing the trial court asked appellant whether he had entered 

a guilty plea and whether he had been admonished that the range of punishment 

was five to 99 years or life in prison. To both questions, appellant answered 

affirmatively. The State introduced the PSI and appellant’s counsel objected on the 

ground that several of the interviews with complainants in the PSI were not 

attributable to appellant. Counsel further requested that the court add two 

documents to the PSI: a letter from the jail chaplain, and notification from 

appellant’s parole officer that he was not under any restrictions from his last prison 

sentence. The trial court agreed to make the documents part of the PSI and 

admitted the PSI into evidence. 

The PSI contains a summary of Sergeant J.A. Hadley’s2investigation of 

appellant. The investigation began when appellant purchased a drill under the 

Nunn Constructors account. Nunn Constructors is a construction company owned 

 

1 Appellant also agreed to waive any right to appeal. Appellant’s waiver of the right to 

appeal is not effective because there was no agreed recommendation as to punishment. See 

Washington v. State, 363 S.W.3d 589, 589–90 (Tex. Crim. App. 2012).

2

The investigating officer’s name is spelled “Headly” in the PSI, and “Hadley” in the 

reporter’s record of the hearing and the briefs. For consistency purposes, we will spell the 

officer’s name, “Hadley.”
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by appellant’s father, David Glynn Nunn, Sr. Appellant’s father had not given him 

permission to use the Nunn Constructors credit card to purchase construction 

equipment. Continued investigation revealed another instance in which appellant 

attempted to purchase construction equipment and later sell it. Hadley received 

information that appellant was staying in a hotel and arranged surveillance. 

Appellant was observed leaving the hotel carrying four backpacks and three pieces 

of luggage. Appellant was arrested on outstanding felony warrants and his bags 

were searched. An inventory of the bags revealed an envelope with a white 

powdery substance appellant identified as methamphetamine, several counterfeit 

Texas identification cards with appellant’s picture, several documents with lists of 

identifying information, a laminating machine, laptop computer, identification 

printer, photo printer, special paper for printing identification cards, and lamination 

blanks with “Texas” printed across them with “UV ink.”

In an interview at the police station, appellant admitted that he used the 

Nunn Constructors account without permission, passed forged checks, used other 

individual’s identities to open credit accounts, used “already open credit accounts,” 

made fraudulent Texas driver’s licenses, and intended to deliver 

methamphetamine. The PSI then listed summaries of interviews from nine 

complainants whose identification had been discovered in appellant’s possession. 

The PSI also contained victim-impact statements from some of the nine 

complainants. Following admission of the PSI, the State rested.

Appellant testified at punishment detailing his drug addiction, which began 

when he was 17 years old. Appellant was employed in the construction industry for 

several years and remained employed with the exception of two periods of 

incarceration. At times his drug usage also prohibited employment. Appellant 

admitted to selling driver’s licenses to pay for methamphetamine, buying and
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selling stolen cell phones, and stealing from his father’s construction company.

Appellant told Sergeant Hadley the identity of the individual to whom he 

sold the stolen construction equipment. Appellant testified that in exchange for this 

information, Hadley “told me he would help me out with my sentence.” Appellant 

further admitted there was no evidence from Hadley to corroborate appellant’s 

claim. Appellant denied opening large credit accounts at department stores, and 

testified he was “content with the small-level theft [he was] working on.”

Appellant asked the trial court to send him to Cenikor, a residential drug-addiction 

treatment facility, rather than prison. 

At the conclusion of the hearing the trial court found appellant guilty, 

assessed punishment at 18 years’ confinement, and asked, “Do you have any legal 

reason why you should not be sentenced at this time?” Appellant responded, “No, 

ma’am.”

VOLUNTARINESS OF GUILTY PLEA

In his first issue, appellant contends, “The evidence presented at Appellant’s 

Pre-Sentence Investigation Hearing and subsequent Motion to Withdraw Plea of 

Guilty supported a finding that Appellant had been promised assistance at 

sentencing which was not fulfilled thus making his plea invalid.” Following 

sentencing, appellant filed a handwritten “Motion to Withdraw Plea of Guilty.” In 

the motion appellant contends (1) he entered into a plea bargain agreement with the 

State in which the State agreed to “dismiss all other charges and enhancements,” 

and, in return, appellant would receive long-term drug treatment; (2) his plea of 

guilty was not voluntary because his attorney did not inform him of the 

consequences of submitting to a PSI, and his attorney represented that he had “a 

close person[al] friendship with” the trial court, and that his attorney could ensure 

that appellant would receive long-term drug treatment rather than a prison 
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sentence. The trial court denied appellant’s motion.

A defendant’s guilty plea must be made freely, voluntarily, and knowingly. 

Ex parte Evans, 690 S.W.2d 274, 276 (Tex. Crim. App. 1985). In determining 

whether a guilty plea is voluntary, this court considers the totality of the 

circumstances. George v. State, 20 S.W.3d 130, 135 (Tex. App.—Houston [14th 

Dist.] 2000, pet. ref’d). Before accepting a guilty plea, a trial court must admonish 

the defendant in accordance with article 26.13 of the Code of Criminal Procedure, 

either orally or in writing, to assure that the defendant understands the charges 

against him and the consequences of his plea. Ex parte Gibauitch, 688 S.W.2d 868, 

870 (Tex. Crim. App. 1985); Tex. Code Crim. Proc. Ann. art. 26.13 (West Supp. 

2014).

A record that indicates the defendant was duly admonished before entering a 

guilty plea presents a prima facie showing the plea was both knowing and 

voluntary. Martinez v. State, 981 S.W.2d 195, 197 (Tex. Crim. App. 1998). A 

defendant still may raise the claim that his plea was not voluntary; however, the 

burden shifts to the defendant to demonstrate that he did not fully understand the 

consequences of his plea such that he suffered harm. Id. Further, when a defendant 

affirmatively indicates at the plea hearing that he understands the proceeding’s 

nature and is pleading guilty because the allegations in the indictment are true, and 

not because of any outside pressure or influence, he has a heavy burden to prove 

that his plea was involuntary. George, 20 S.W.3d at 135.

Here, appellant was admonished in writing by the court. Appellant signed 

the admonishments, which included the range of punishment, the waiver of trial by 

jury, representations that he understood the consequences of his plea, that he was 

mentally competent, that he made his plea freely and voluntarily, and that he was 

satisfied with his counsel’s representation. The record is silent as to any deviation 
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from the proper admonishment procedures, and there is nothing in the plea papers 

to indicate that the plea was involuntary. As such, the trial court’s admonishments 

substantially complied with the requirements of the Code of Criminal Procedure, 

and, therefore, there is a strong presumption that appellant’s plea was voluntary. 

The only evidence appellant has presented of any misrepresentation is his 

hand-written motion and his statement at the punishment hearing that Hadley told 

appellant he would “help [him] out with his sentence.” Appellant admitted, 

however, that there was no evidence from Hadley to corroborate his statement. 

Misinformation concerning a matter about which a defendant is not 

constitutionally or statutorily entitled to be informed may render a guilty plea 

involuntary if the defendant shows that his guilty plea was actually induced by the 

misinformation. Brown v. State, 943 S.W.2d 35, 42 (Tex. Crim. App. 1997). 

However, “a defendant’s claim he was misinformed by counsel, standing alone, is 

not enough for us to hold his plea was involuntary.” Fimberg v. State, 922 S.W.2d 

205, 208 (Tex. App.—Houston [1st Dist.] 1996, pet. ref’d).

Appellant signed the trial court’s admonishments that he understood the 

charge against him and the appropriate range of punishment for the charged 

offense was five to 99 years’ confinement and a possible fine not to exceed 

$10,000. We presume that recitals in court documents are correct unless the record 

affirmatively shows otherwise. Breazeale v. State, 683 S.W.2d 446, 450 (Tex.

Crim. App. 1984). There is no record of the plea hearing to contradict the written 

record. 

In this case, there is direct as well as circumstantial evidence to indicate that 

appellant’s plea was entered freely and voluntarily. Given the non-corroborated 

statements of appellant, and the totality of the circumstances, the trial court could

have reasonably determined that appellant’s guilty plea was made knowingly and 
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voluntarily. See Evans, 690 S.W.2d at 276. As such, appellant has not met his high 

burden to show that the plea was involuntary, and, therefore, the trial court did not 

abuse its discretion in denying appellant’s motion to withdraw his plea. We 

overrule appellant’s first issue. 

CRUEL AND UNUSUAL PUNISHMENT

In his second issue appellant contends that his 18-year-sentence “constituted 

cruel and unusual punishment in violation of the Eighth and Fourteenth 

Amendments to the Constitution of the United States.”

Appellant failed to preserve his complaint of cruel and unusual punishment

for appellate review. Appellant made no objection to his sentence in the trial court 

at the time of sentencing. In his post-judgment motion, appellant challenged the 

voluntariness of his plea, but did not lodge an objection under constitutional or 

other grounds to the alleged disparity, cruelty, unusualness, or excessiveness of the 

sentence.

To preserve error for appellate review, a party must present a timely 

objection to the trial court, state the specific grounds for the objection, and obtain a 

ruling. Tex. R. App. P. 33.1(a). “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.” Keeter 

v. State, 175 S.W.3d 756, 760 (Tex. Crim. App. 2005) (quoting Lankston v. State, 

827 S.W.2d 907, 909 (Tex. Crim. App. 1992)). See Rhoades v. State, 934 S.W.2d 

113, 120 (Tex. Crim. App.1996) (holding that failure to object on grounds of cruel 

and unusual punishment waives claim that sentence violated prohibition in Texas 

Constitution); Arriaga v. State, 335 S.W.3d 331, 334 (Tex. App.—Houston [14th 

Dist.] 2010, pet. ref’d) (holding that failure to object to a sentence as cruel and 
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unusual forfeits error); and Solis v. State, 945 S.W.2d 300, 301 (Tex. App.—

Houston [1st Dist.] 1997, pet. ref’d) (holding that a claim of grossly 

disproportionate sentence violative of Eighth Amendment was forfeited by failure 

to object).

By failing to object to the trial court’s sentence below, appellant has 

forfeited the complaints he now makes on appeal.

Waiver notwithstanding, appellant has not shown that his sentence was cruel 

and unusual, or grossly disproportionate to the offense for which he was convicted. 

Although a sentence may be within the range permitted by statute, it may 

nonetheless run afoul of the Eighth Amendment prohibition against cruel and usual 

punishment. Solem v. Helm, 463 U.S. 277, 290 (1983). A sentence is grossly 

disproportionate to a crime only when an objective comparison of the gravity of 

the offense against the severity of the sentence reveals the sentence to be extreme. 

Harris v. State, 204 S.W.3d 19, 29 (Tex. App.—Houston [14th Dist.] 2006, pet. 

ref’d); Hicks v. State, 15 S.W.3d 626, 632 (Tex. App.—Houston [14th Dist.] 2000, 

pet. ref’d). In its proportionality analysis, a reviewing court must first review 

whether the sentence is grossly disproportionate to the offense. Hicks, 15 S.W.3d 

at 632. If the reviewing court determines the sentence to be grossly 

disproportionate to the crime committed, then it compares (1) sentences for similar 

crimes in the jurisdiction and (2) sentences for the same crime in other 

jurisdictions. Id. The constitutional principal of the Eighth Amendment is 

tempered, however, by the corollary proposition that the determination of prison 

sentences is a legislative prerogative that is primarily within the province of the 

legislatures, not the courts. Rummel v. Estelle, 445 U.S. 263, 274–76 (1980).

We first determine whether “an objective comparison of the gravity of the 

offense against the severity of the sentence reveals the sentence to be extreme.” 
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Baldridge v. State, 77 S.W.3d 890, 893 (Tex. App.—Houston [14th Dist.] 2002, 

pet. ref’d) (citing Harmelin v. Michigan, 501 U.S. 957, 1005 (1991) (Kennedy, J., 

plurality op.)). Only if we are able to infer that the sentence is grossly 

disproportionate will we then compare the challenged sentence against the 

sentences of other offenders in the same jurisdiction and the sentences imposed for 

the same crime in other jurisdictions. Baldridge, 77 S.W.3d at 893; see also Solem, 

463 U.S. at 292.

Appellant argues he was disproportionately sentenced for committing a

“non-violent” offense, “especially in light of Appellant’s long-standing history of 

drug addiction.” The trial court sentenced appellant for possession of more than ten 

items of identifying information of elderly individuals, a first-degree felony. See

Tex. Penal Code Ann. § 32.51(b)(1); (c)(1). The punishment range for a firstdegree felony is confinement for five to 99 years or life, and a fine not to exceed 

$10,000. Tex. Penal Code Ann. § 12.32. When appellant entered his guilty plea he 

acknowledged the possible range of punishment. 

Appellant admitted that he sold driver’s licenses to pay for 

methamphetamine, bought and sold stolen cell phones, and stole from his father’s 

construction company. Appellant further admitted that he previously had been 

unsuccessful when placed on probation. Appellant has failed to show that his 18-

year sentence is grossly disproportionate to the first-degree felony offense to which 

he pleaded guilty. By making fraudulent use or possession of more than ten items 

of identifying information of elderly individuals a first-degree felony the 

legislature has identified this offense as a serious offense. The PSI contains 

recitations from several of the complainants as to the impact of appellant’s crimes 

on their lives. With that in mind, the assessment of an 18-year sentence, near the 

low end of the sentencing range, is not grossly disproportionate to the offense in 
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this case. Because we hold appellant’s sentence is not grossly disproportionate to 

his crime, we need not examine the other Solem factors. See Harmelin, 501 U.S. at 

1006. We overrule appellant’s second issue.

We affirm the trial court’s judgment.

/s/ John Donovan

Justice

Panel consists of Justices Boyce, McCally, and Donovan.

Do Not Publish — Tex. R. App. P. 47.2(b).