NO. 12-19-00258-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

LARRY COLEMAN HICKS, 

APPELLANT

V.

THE STATE OF TEXAS,

APPELLEE

§

§

§

APPEAL FROM THE 114TH 

JUDICIAL DISTRICT COURT

SMITH COUNTY, TEXAS

MEMORANDUM OPINION

A jury convicted Larry Coleman Hicks of assault on a public servant, enhanced to allege 

Appellant was a habitual offender. The jury assessed his punishment at confinement for life in 

the Texas Department of Criminal Justice, Institutional Division. Appellant presents seven 

issues on appeal. We affirm.

BACKGROUND

Appellant met with Parole Officer Shella Coleman to discuss the conditions of his parole. 

Shortly thereafter, the parole office ordered that he wear an ankle monitor.

Karl Gentry testified that he was a parole officer on May 18, 2018. On that date, Gentry 

installed an ankle monitor on Appellant and a monitoring unit in his mother’s home where 

Appellant lived. Gentry told Appellant to stay home over the weekend and to come into the 

parole office Monday morning, May 21.

Coleman sent Gentry back to Appellant’s home on May 21, because Appellant had not 

reported as instructed, and the monitoring system indicated that someone tampered with the 

ankle monitor. He arrived at the house where Appellant was living at approximately 4:00 p.m. 

and parked in the driveway. He knocked on the door and received no response. He found no 

one in the backyard. He was about to leave when the garage door opened. Gentry stepped about 
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four feet into the garage. Just before entering the garage, Gentry thought he heard “hey” or 

“what do you want?” Gentry responded, “Parole Officer Gentry. I’m here to check my 

equipment.” Appellant stood in the doorway of the house dressed in shorts and a t-shirt. Gentry 

then took a photo with his cell phone to document that Appellant was not wearing his ankle 

monitor as he was required to do. This apparently enraged Appellant who charged Gentry, 

cursing and howling, and swung and hit Gentry’s wrist and hand that held the cell phone. 

Appellant then ran back into the house yelling, “Oh, oh, oh. I’ve got something for you.”

Gentry testified that the blow caused pain to his wrist and hand that he described as a 

stinging, pulsing pain that lasted about an hour. Gentry returned to his vehicle, drove down the 

street and called 9-1-1 to summon assistance. When Gentry returned with other officers to 

Appellant’s house, they found the monitor base unit smashed into pieces and lying in the 

driveway. Appellant refused to exit the house. A standoff ensued until a SWAT team armored 

vehicle knocked the front door open, and Appellant was taken into custody.

At the conclusion of trial, the jury found Appellant guilty of assault on a public servant 

and sentenced him to life in prison. This proceeding followed.

SUFFICIENCY OF THE EVIDENCE

In this first issue, Appellant maintains that the evidence is insufficient to establish that he 

possessed the requisite intent required to commit the offense. In his second issue, Appellant 

contends the evidence is insufficient to establish that Parole Officer Gentry sustained bodily 

injury. We will address these two issues together.

Standard of Review

An appellate court reviews a challenge to the sufficiency of the evidence under the 

standard of review set forth in Jackson v. Virginia. 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 

L. Ed. 2d 560 (1979); Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010). A 

challenge to the sufficiency of the evidence requires the reviewing court to consider the evidence 

in the light most favorable to the verdict to determine whether any rational trier of fact could 

have found all the elements of the offense beyond a reasonable doubt. Jackson, 443 U.S. at 319, 

99 S. Ct. at 2789; Brooks, 323 S.W.3d at 895. The jury is the exclusive judge of the credibility of 

the witnesses and the weight to be given their testimony, and the reconciliation of conflicts in the 

evidence. Whitaker v. State, 977 S.W.2d 595, 598 (Tex. Crim. App. 1998). “When the record 
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supports conflicting inferences, we presume that the fact finder resolved the conflicts in favor of 

the prosecution and therefore defer to that determination.” Clayton v. State, 235 S.W.3d 772, 

778 (Tex. Crim. App. 2007).

In viewing the record, direct and circumstantial evidence are treated equally; 

circumstantial evidence is as probative a direct evidence in establishing the guilt of the actor, and 

circumstantial evidence alone can be sufficient to establish guilt. Id. at 778; Dansby v. State, 

530 S.W.3d 213, 226 (Tex. App.—Tyler 2017, pet. ref’d).

Applicable Law

An actor commits an assault if he “intentionally, knowing, or recklessly causes bodily 

injury to another. TEX. PENAL CODE ANN. § 22.01(a)(1) (West Supp. 2019). The Texas Penal 

Code defines “bodily injury” as “physical pain, illness, or any impairment of physical condition.” 

Id. § 1.07(a)(8) (West Supp. 2019). The testimony of the victim that he or she suffered physical 

pain is legally sufficient to establish the element of “bodily injury.” See Laster v. State, 275

S.W.3d 512, 524 (Tex. Crim. App. 2009). When considering whether evidence is sufficient to 

establish that a victim suffered pain, juries may use common sense and apply common 

knowledge, observation, and experience gained in ordinary affairs of life, using inferences that 

reasonably could be drawn from the evidence. Wawrykow v. State, 866 S.W.2d 87, 88-89 (Tex. 

App.—Beaumont 1993, pet. ref’d).

Intent is typically proven through circumstantial evidence and may be inferred from a 

defendant’s words or conduct. State v. Fuller, 480 S.W.3d 812, 823 (Tex. App.—Texarkana 

2015, pet. ref’d). Circumstantial evidence of an accused’s mental state must be reviewed with 

the same scrutiny as other elements of an offense. Laster, 275 S.W.3d at 519-20. The statutory

definition of “bodily injury” includes “even relatively minor physical contact if it constitutes 

more than offensive touching.” Id. at 524. The jury may infer the existence of the culpable 

mental state from any acts tending to prove its existence, including the acts, words, and conduct 

of the accused, the method of committing the crime, and the wounds inflicted on the victims. 

Hart v. State, 89 S.W.3d 61, 64 (Tex. Crim. App. 2002); Dobbins v. State, 228 S.W.3d 761, 765 

(Tex. App.—Houston [14th Dist.] 2007, pet. dism’d).

The legal sufficiency of the evidence is measured by the elements of the offense as 

defined by a hypothetically correct jury charge. Malik v. State, 953 S.W.2d 234, 240 (Tex. 

Crim. App. 1997). A “hypothetically correct” jury charge is “one that accurately sets out the 
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law, is authorized by the indictment, does not unnecessarily increase the State’s burden of proof 

or unnecessarily restrict the State’s theories of liability, and adequately describes the particular 

offense for which the defendant was tried.” Id.

There are three conduct elements which may be involved in any offense: (1) the nature 

of the conduct; (2) the result of the conduct; and (3) the circumstances surrounding the conduct. 

Cook v. State, 884 S.W.2d 485, 487 (Tex. Crim. App. 1994). A proper jury charge limits the 

definitions of the applicable culpable mental states to include only the language regarding the 

relevant conduct elements. In re I.L., 389 S.W.3d 445, 450 (Tex. App.—El Paso 2012, no pet.) 

Assault causing bodily injury is a result oriented offense. Landrian v. State, 268 S.W.3d 532,

536 (Tex. Crim. App. 2008). Therefore, the definitions of the culpable mental states 

(intentionally, knowingly, or recklessly) should be limited to include the result of conduct 

element. In Re I.L., 389 S.W.3d at 451. So limited the culpable mental states alleged should be 

defined as follows:

A person acts intentionally, or with intent, with respect to a result of his conduct when it is his 

conscious objective or desire to cause the result. A person acts knowingly, or with knowledge, 

with respect to a result of his conduct when he is aware that his conduct is reasonably certain to 

cause the result. A person acts recklessly, or is reckless, with respect to the result of his conduct 

when he is aware of but consciously disregards a substantial and unjustifiable risk that the result 

will occur.

Price, 457 S.W.3d at 443.

Discussion

The indictment charged that Appellant did intentionally, knowingly, and recklessly cause 

bodily injury to Gentry by striking him with his hand and that Appellant did then and there know 

that Gentry was a public servant lawfully discharging an official duty. Appellant acknowledges 

that he intentionally slapped the cell phone from Gentry’s hand. But he argues that there was no 

evidence that he acted with the culpable mental state required for conviction. Common 

experience justified the jury’s belief that Appellant knew that physical pain would naturally 

accompany a blow delivered with force sufficient to knock a cell phone from a grown man’s 

hand. The jury was entitled to infer from the sudden and violent nature of the attack that 

Appellant knew that hitting Gentry’s hand was reasonably certain to cause pain. The jury was 

also entitled to infer from Appellant’s language and conduct that, although aware of the 
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substantial and unjustified risk of injury to Gentry, Appellant consciously disregarded it. The 

evidence is sufficient to support the jury’s implicit finding of the culpable mental state alleged.

Appellant also insists there is no objective evidence that Gentry suffered pain as a result 

of the assault. Gentry did not seek medical attention after the assault. There was no evidence of 

visible injury to Gentry’s hand or wrist. In reporting the assault to Deputy Steve Dunklin almost 

immediately thereafter, Gentry told Dunklin, “He hit my hand. That’s assault on a public 

servant.” Appellant argues that Gentry did not tell Deputy Dunklin that he felt pain.

Gentry testified at trial that he felt a “stinging, pulsing pain” in his wrist and hand “for 

about an hour” after the assault. Dunklin stated in his testimony that Gentry said he felt pain 

when Appellant struck him and that he included this fact in his report. Gentry’s trial testimony 

regarding the pain inflicted by Appellant’s blow is sufficient, in itself, to establish the element of 

bodily injury. See Laster, 275 S.W.3d at 524. 

Viewing the evidence in the light most favorable to the State, we conclude that the 

evidence is sufficient to prove Appellant’s culpable mental state and Gentry’s injury. 

Appellant’s first two issues are overruled.

ADMISSION OF EVIDENCE 

In issue three, Appellant complains that the trial court abused its discretion in admitting 

testimony that officers found a gun in Appellant’s mother’s bedroom after he was arrested. Prior 

to testimony, the State informed the court that it intended to offer testimony that the officers 

found a pistol in the house where Appellant lived. Out of the presence of the jury, the court 

overruled Appellant’s objections that evidence of the pistol was not relevant to the charged 

offense and was unduly prejudicial.

Deputy Dunklin subsequently testified that when officers entered the home after the end 

of the standoff and after Appellant’s arrest, they found a nine shot .22 caliber revolver on top of a 

chest of drawers in the bedroom of his mother, who owned the home. No evidence linked the 

gun to Appellant. Appellant argues this testimony constituted evidence of an extraneous offense 

with no proof that he committed the offense. Appellant also maintains that evidence of the 

pistol’s presence was unrelated to any issue in the case.
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Standard of Review

An appellate court reviews the trial court’s decision to admit or exclude evidence for 

abuse of discretion. See Zuliani v. State, 97 S.W.3d 589, 595 (Tex. Crim. App. 2003). An abuse 

of discretion in the admission of evidence occurs when the decision is so clearly wrong as to lie 

outside the zone within which reasonable persons might disagree. McDonald v. State, 179 

S.W.3d 571, 576 (Tex. Crim. App. 2005).

Applicable Law

In a case where the court has overruled an objection to evidence, the ruling usually will 

not be reversible error when the same evidence is subsequently admitted without objection. See

Massey v. State, 933 S.W.2d 141, 149 (Tex. Crim. App. 1996). However, an exception to this 

rule is that the harmful effect of improperly admitted evidence is not cured by the fact that the 

defendant sought to meet, destroy or explain it by introducing rebutting evidence. Leday v. 

State, 983 S.W.2d 713, 718-19 (Tex. Crim. App. 1998). Testimony elicited during crossexamination may come within the exception. Valcarcel v. State, 765 S.W.2d 412, 418 (Tex. 

Crim. App. 1989).

Evidence of an extraneous offense “is not admissible to prove a person’s character in 

order to show that on a particular occasion the person acted in accordance with the character.” 

TEX. R. EVID. 404(b)(1). An extraneous offense is not admissible unless the State clearly proves 

the defendant committed it, that it is relevant to a material issue, and that its probative value is 

not substantially outweighed by its prejudicial effect. Wyle v. State, 777 S.W.2d 709, 715 (Tex. 

Crim. App. 1989). A defendant may respond to evidence of an extraneous offense admitted over 

objection. Leday, 983 S.W.2d at 718 n.9.

An adverse ruling on a pretrial motion to suppress evidence will ordinarily suffice to 

preserve error on appeal, and a defendant need not specifically object to the evidence when it is 

later offered at trial. Thomas v. State, 408 S.W.3d 877, 881 (Tex. Crim. App. 2013). An 

affirmative statement of “no objection” will ordinarily constitute a waiver of the right to raise on

appeal the error that was previously preserved. Id. at 881-82. The court of criminal appeals has 

stated that the application of this rule is context dependent. 

By that we mean that an appellate court should not focus exclusively on the statement itself, in 

isolation, but should consider it in the context of the entirety of the record. If the record as a 

whole plainly demonstrates that the defendant did not intend, nor did the trial court construe, his 

“no objection” statement to constitute an abandonment of a claim of error that he had earlier
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preserved for appeal, then the appellate court should not regard the claim as “waived,” but should 

resolve it on the merits. On the other hand, if from the record as a whole the appellate court 

simply cannot tell whether an abandonment was intended or understood, then, consistent with 

prior case law, it should regard the “no objection” statement to be a waiver of the earlier-preserved 

error. Under the latter circumstances, the affirmative “no objection” statement will, by itself, 

serve as an unequivocal indication that a waiver was both intended and understood.

Id. at 885-86.

Discussion

The State does not respond to Appellant’s arguments attacking the trial judge’s ruling 

admitting the challenged evidence. The State contends that, after the trial court’s ruling, 

Appellant waived or abandoned his claim of error for purposes of appeal. The State cites 

multiple instances during trial which it claims indicate Appellant’s abandonment of his objection 

to the pistol evidence. Appellant did not object to the State’s mention of the pistol during its 

opening statement. Appellant, in his opening statement, mentioned “there was a gun.” When the 

State offered pictures in which the pistol was shown, Appellant stated, “No objection to the 

offer.” Appellant did not object to a witness discussing what was depicted in the photographs of 

the pistol. He did not object to a patrol sergeant’s testimony concerning a “.22 firearm” possibly 

being in Appellant’s house, and the danger it could pose to officers. Appellant cross examined 

the same witness about “the gun being in the house.” When questioning Investigator Ron 

Rathbun, defense counsel elicited testimony about the “.22 caliber handgun.” During closing 

arguments, Appellant did not object to the prosecutor’s mention of the threat of gunfire.

Appellant insists that because he objected and obtained an adverse ruling outside the 

presence of the jury, he did not have to reiterate his objection before the jury at every mention of 

the pistol during the opening statements, the testimony, or final arguments. Appellant insists that 

his counsel did not intend to abandon the objection when he said, “No objection to the offer”

when the State offered pictures with the pistol in the background. Appellant argues that his 

counsel must have failed to see the pistol in the pictures when he stated that he had no objection. 

Appellant argues he did not abandon the claim of error, because there was “no sound strategic 

reason” to do so.

The pistol was found in the bedroom of Appellant’s mother. She owned the house. 

There was no evidence linking the pistol to Appellant. An extraneous offense is inadmissible 

unless the Sate proves beyond a reasonable doubt that the defendant committed it. Harrell v. 

State, 884 S.W.2d 154, 160 (Tex. Crim. App. 1994). Further, the presence of the gun in his 
8

mother’s bedroom was unrelated to proof of any element of the charged offense. Since evidence 

of the extraneous offense was not relevant to the issues in the case, it had no probative value. 

Therefore, it is clear that the danger of unfair prejudice of the pistol evidence substantially 

outweighed its negligible probative value. See TEX. R. EVID. 403. We conclude that the trial 

court erred in overruling Appellant’s objection to the evidence of the pistol.

Although not defending the lower court’s ruling, the State argues that Appellant’s later 

statement of “no objection” forfeited the earlier preserved error.

Even if we assume error was preserved and not waived or abandoned, it is still subject to 

a harmless error review. The improper admission of an extraneous offense is non constitutional 

error and must be disregarded under Texas Rule of Appellate Procedure 44.2(b) unless it affected

the defendant’s substantial rights. A substantial right is affected where 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). Substantial rights are not affected by the erroneous admission of evidence if, 

after examining the record as a whole, we have a fair assurance that the error did not influence 

the jury, or had but a slight affect. Motilla v. State, 78 S.W.3d 352, 355 (Tex. Crim. App. 2002). 

To assess the likelihood that the error adversely affected the jury’s decision, we consider the 

entire record. Id. The reviewing court must consider the character of the alleged error, and how 

it might be considered with other evidence, the extent the error was emphasized by the State, and 

the weight a juror would likely place on the error. Id. at 355-56. Evidence of guilt is a factor in 

any thorough harm analysis. Id. at 358. If the error was of the magnitude to prejudice the jury’s 

evaluation of the evidence, the conviction is tainted despite overwhelming evidence of the 

defendant’s guilt. Harris v. State, 790 S.W.2d 568, 588 (Tex. Crim. App. 1989).

There is nothing in the record showing Appellant ever had the pistol in his possession. 

The Sheriff’s deputies were not aware of the pistol in the house until Appellant’s sister asked her 

mother if there was a gun in the house. The mother, who was not in the house during the 

standoff, said the pistol was on the highboy. That is where the officers found it when they finally 

entered the house. However, the prosecution repeatedly alluded to the danger presented by the 

pistol.

The pistol evidence could have had little influence on the jury’s determination that 

Gentry was a parole officer or that he felt pain when Appellant struck his wrist and hand. 

Extraneous offense evidence tends to show that the defendant is a bad person generally. 
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Therefore, it may improperly contribute to the severity of punishment imposed. In this case, 

Appellant had seven felony convictions. He had violated previous probations and absconded 

when placed on parole. When this assault occurred, he was on parole from serving a previous 

sentence for assault on a public servant. The standoff Appellant caused did not end until a 

SWAT team used an armored vehicle to breach the front door of his mother’s house. 

Having considered the entire record, we conclude that the error did not influence the 

jury’s decision on Appellant’s conviction or punishment, or had but slight effect. Appellant’s 

third issue is overruled.

EXCLUSION OF EVIDENCE

In his fourth issue, Appellant contends the trial court abused its discretion in excluding 

testimony that the Parole Board fired Gentry for misconduct involving a parolee under his 

supervision.

Prior to trial, the State filed a motion in limine to prevent Appellant from introducing 

evidence that Gentry had engaged in inappropriate conduct as a parole officer. On August 9, 

2018, a parolee complained that Gentry attempted to establish an inappropriate relationship with 

her between October 2016 and December 2017. The Office of the Inspector General, after 

conducting an investigation, concluded that Gentry “did engage in an improper 

employee/offender relationship” by giving a video game to the parolee’s children. Shortly 

thereafter, Gentry was no longer employed as a parole officer.

During trial, without objection, the State elicited testimony from Gentry that he had 

testified before Appellant’s parole hearing in August 2018 that he felt pain when Appellant 

struck him. This statement was consistent with his earlier testimony in this case. On cross 

examination, Appellant contended to the trial court that the State’s introduction of a specific 

prior consistent statement permitted the defense to introduce specific prior acts of the witness 

reflecting on his credibility.

On appeal, Appellant contends the trial court erred in excluding the evidence showing 

motive or bias, because it showed “Gentry had a motive to be a complainant in a criminal case,

because he knew that a [former] female parolee was lurking in the shadows who could (and did) 

cost him his job.” Appellant also argues on appeal that the trial court should have admitted the 
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evidence to correct the false impression that Gentry was a parole officer in good standing at the 

time of trial.

At trial, Appellant sought to introduce evidence of Gentry’s past conduct in order to 

attack his general character for truthfulness. The trial court sustained the State’s objection that it 

was (1) an irrelevant collateral matter, and (2) it was barred by Texas Rule of Evidence 608(b) 

as an inquiry into a specific instance of the witness’s conduct to attack his character for 

truthfulness.

The grounds for the admission of the OIG report argued on appeal do not comport with 

those presented to the trial court and no error was preserved. See Guevara v. State, 97 S.W.3d 

579, 583 (Tex. Crim. App. 2003). Moreover, only the most improbable reasoning supports 

Appellant’s argument that the Inspector General’s report would have exposed bias or motive. 

There was no evidence at trial that Gentry was presently a parole officer. If Appellant wanted 

the jury to know that Gentry was no longer a parole officer, he needed only to have asked him on 

cross examination.

Appellant’s forth issue is overruled.

FAILURE TO INSTRUCT JURY ON LESSER INCLUDED OFFENSE

In his fifth issue, Appellant contends the trial court erred in failing to submit to the jury 

an instruction on Class A assault.

Standard of Review and Applicable Law

A trial court’s denial of a lesser included offense instruction is reviewed for abuse of 

discretion. See Threadgill v. State, 146 S.W.3d 654, 666 (Tex. Crim. App. 2004). When 

determining whether the trial court properly refused a request for a lesser included offense 

instruction, the appellate court reviews all of the evidence presented at trial. Rousseau v. State, 

855 S.W.2d 666, 673 (Tex. Crim. App. 1993).

Upon the defendant’s request, the trial court must include a lesser included offense 

instruction in the jury charge when (1) the requested charge is for a lesser included offense of the 

charged offense, and (2) there is some evidence that, if the defendant is guilty, he is guilty of 

only the lesser offense. Guzman v. State, 188 S.W.3d 185, 188 (Tex. Crim. App. 2006). To 

entitle the defendant to a lesser included offense instruction, “it is not enough that the jury may 

disbelieve crucial evidence pertaining to the greater offense, but rather, there must be some 
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evidence directly germane to the lesser-included offense for the finder of fact to consider before 

an instruction on a lesser-included offense is warranted.” Sweed v. State, 351 S.W.3d 63, 68 

(Tex. Crim. App. 2011) (quoting Skinner v. State, 956 S.W.2d 532, 543 (Tex. Crim. App. 1997), 

cert. denied, 523 U.S. 1079, 118 S. Ct. 1526, 140 L. Ed. 2d 677 (1998)). More than a scintilla of 

evidence requires the submission of a lesser included offense instruction. Id. A defendant 

charged with assault on a public servant is entitled to an instruction on Class A misdemeanor 

assault if evidence from any source raises a fact question as to whether he knew the complainant 

was a public servant. See Drew v. State, 735 S.W.2d 655, 657-58 (Tex. App.—Austin 1987, pet. 

ref’d).

Discussion

Appellant interprets the evidence as raising a fact question as to whether he knew that 

Gentry was a parole officer at the time of their encounter in the garage. He argues that the jury 

could have concluded that Gentry did not tell him he was a parole officer when Gentry installed 

the ankle monitor on May 18. He also contends that the jury could also have determined that, 

when Gentry returned three days later, Gentry did not identify himself as a parole officer, or, if 

he did, Appellant did not hear him or did not believe him because of his appearance.

There was no evidence offered at trial that Appellant was unaware that Gentry was a 

parole officer when he placed the monitor on Appellant’s leg. There is no evidence that when 

Gentry returned three days later, he did not announce, “Parole Officer Gentry. I’m here to check 

my equipment.”

The conclusions argued for by Appellant would depend solely on the jury’s disbelief in 

the trial evidence. This is insufficient. There must be some evidence “directly germane” to the 

lesser included offense that would warrant an instruction. Sweed, 351 S.W.3d at 68. There is no

such evidence in the record.

Appellant’s fifth issue is overruled.

CUMULATIVE ERROR

In his sixth issue, Appellant maintains the cumulative effect of the trial court’s errors 

denied him a fair trial.
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Applicable Law

A number of errors may be found harmful in their cumulative effect even if each error, 

considered separately, would be harmless. Linney v. State, 413 S.W.3d 766, 767 (Tex. Crim. 

App. 2013); see also Chamberlain v. State, 998 S.W.2d 230, 238 (Tex. Crim. App. 1999). “A 

string of harmless errors does not arithmetically create reversible, cumulative error.” Linney, 

413 S.W.3d at 767 (Cochran, J., concurring in refusal of pet.). Instead the court looks for 

multiple errors that acting together achieve “the critical mass necessary to cast a shadow on the 

integrity of the verdict.” Id. 

Discussion

We have determined that the trial court erred only in admitting evidence of the pistol in 

Appellant’s mother’s house, an error which we determined is harmless. We have found no other 

errors to cumulate with the sole error found. Nonerrors may not in their cumulative effect cause 

error. See Chamberlain, 998 S.W.2d at 238.

Appellant’s sixth issue is overruled.

CRUEL AND UNUSUAL PUNISHMENT

In his seventh issue, Appellant contends that the life sentence imposed on him as a

habitual offender constitutes cruel and unusual punishment in violation of the Eighth 

Amendment. Appellant argues that, viewed in the light most favorable to the verdict, the record 

shows that he did no more than slap a cell phone out of a public servant’s hand, causing transient 

pain but leaving no visible injury and requiring no medical attention. Therefore, in Appellant’s 

view, the life sentence imposed is grossly disproportionate to the offense.

The State contends that since Appellant raised no objection in the trial court, he has 

waived the issue on appeal. The State also argues that, even absent waiver, Appellant’s Eighth 

Amendment claim is meritless.

Applicable Law

The Eighth Amendment forbids sentences that are grossly disproportionate to the crime 

for which the defendant has been convicted. U.S. CONST. amend. VIII; see also Solem v. Helm, 

463 U.S. 277, 290, 103 S. Ct. 3001, 3010, 77 L. Ed. 2d 637 (1983). Factors that may be used in 

determining the proportionality of a sentence are (1) the gravity of the offense and the harshness 

of the penalty, (2) the sentences imposed on other criminals in the same jurisdiction, and (3) the 
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sentences imposed for the same crime in other jurisdictions. Solem 463 U.S. at 292, 103 S. Ct. at 

3011. However, if the threshold comparison of the gravity of the offense against the severity of 

the sentence shows that the sentence is not grossly disproportionate, the reviewing court need not 

consider the last two factors of the Solem test. McGruder v. Puckett, 954 F.2d 313, 316 (5th

Cir. 1992). The severity of the sentence imposed on a habitual offender should not be compared 

with the seriousness of the most recent offense, as it stands alone, but in light of the offender’s 

prior offenses. Id.

Without an objection in the trial court raising the issue of cruel and unusual punishment, 

the issue is waived on appeal. See Rhoades v. State, 934 S.W.2d 113, 120 (Tex. Crim. App.

1996) (waiver with regard to rights under the Texas Constitution); Curry v. State, 910 S.W.2d 

490, 497 (Tex. Crim. App. 1995) (waiver with regard to rights under United States Constitution); 

Robertson v. State, 245 S.W.3d 545, 549 (Tex. App.—Tyler 2007, pet. ref’d).

Discussion

Appellant argues that an Eighth Amendment claim that the sentence is disproportionate to 

the crime committed should be cognizable on appeal despite the absence of an objection at trial, 

“because it does not become ripe until the jury returns a verdict, at which time an objection 

would be futile because the trial court cannot correct the error.” Appellant insists that freedom 

from cruel and unusual punishment is a right “so fundamental to the proper functioning of our 

adjudicatory process” that it should not be considered forfeited on appeal unless the record 

reflects that it has been “plainly, freely, and intelligently” waived at trial. In Proenza v. State, 

541 S.W.3d 786 (Tex. Crim. App. 2017), the court of criminal appeals held that the right to be 

tried in a proceeding devoid of improper judicial commentary is a right that will not be 

considered waived on appeal unless the record clearly reflects that the appellant “plainly, freely, 

and intelligently” waived that right at trial. Id. at 801. Appellant maintains that in light of 

Proenza, the court of criminal appeals is unlikely to require a trial objection to preserve an 

Eighth Amendment claim on appeal.

Even if we assume that no trial objection was required to preserve error, Appellant still 

cannot prevail. In this case, Appellant was convicted of assaulting a public servant for the 

second time. He had accumulated six other felony convictions. He had violated the conditions 

of the several probated sentences he had received. When granted parole, he absconded. His last 

arrest came after a protracted standoff only ended by the use of the SWAT team’s specially 
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modified armored personnel carrier. In determining whether Appellant’s sentence is 

unconstitutionally disproportionate, Appellant’s record must be considered in light of the 

defendant’s record as a habitual offender and the Supreme Court’s holding in Rummel v. Estelle, 

445 U.S. 263, 100 S. Ct. 1133, 63 L. Ed. 2d 382 (1980). Rummel received a mandatory life 

sentence under a prior version of the Texas habitual offender statute for three nonviolent 

property crimes where the total amount taken in all three crimes amounted to just under $230. 

445 U.S. at 265-66, 100 S. Ct. at 1135. The Supreme Court held that the mandatory life sentence 

imposed on Rummel did not constitute cruel and unusual punishment. 445 U.S. at 285, 100 S.

Ct. at 1145. In light of Rummel, Appellant’s sentence is not unconstitutionally disproportionate. 

Absent a threshold showing of disproportionality, we need not apply the second and third Solem

elements.

Appellant’s seventh issue is overruled.

DISPOSITION

The judgment of the trial court is affirmed.

BILL BASS

 Justice

Opinion delivered September 9, 2020.

Panel consisted of Worthen, C.J., Neeley, J., and Bass, Retired J., Twelfth Court of Appeals,

sitting by assignment.

(DO NOT PUBLISH)
COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

JUDGMENT

SEPTEMBER 9, 2020

NO. 12-19-00258-CR

LARRY COLEMAN HICKS,

Appellant

V.

THE STATE OF TEXAS,

Appellee

Appeal from the 114th District Court

of Smith County, Texas (Tr.Ct.No. 114-0976-18)

THIS CAUSE came to be heard on the appellate record and briefs filed 

herein, and the same being considered, it is the opinion of this court that there was no error in the

judgment. 

It is therefore ORDERED, ADJUDGED and DECREED that the judgment of 

the court below be in all things affirmed, and that this decision be certified to the court below 

for observance.

Bill Bass, Justice. Panel consisted of Worthen, C.J., Neeley, J., and Bass, Retired J., Twelfth Court of

Appeals, sitting by assignment.