## NO. 12

- 19

- 00258

- CR

IN THE COUR T 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

MEMORAN DUM OPINION A jury convicted Larry Coleman Hicks of a ssault on a p ublic s ervant , enhanced to allege Appellant was a habitual offender. The jury assessed his punishment at confinement for life in the Texas Department of Cri min al Justice , Institutio n al Di vision. Appellan t pre sents seven issues o n appeal. We affirm.

B ACKGROUND Appellant met with Parole Officer She l la Coleman to dis cuss the conditions of his parole. Shortly thereafter, the parole office ordered that he w ear an ankle monitor.
Karl Gen try testified that h e was a parole officer on May 18, 2018. On that date, Gentry installed an ankle monitor on Appellant an d a monitoring unit in his mother ’ s home where Appellant lived. Gentry told Appe llant to stay home over the weekend a nd to come int o the parole offic e Monday morning, May 21

. Coleman sent Gentry back to Appellant ’ s home on May 21, because Appellant had not reported as in structed, and the monitoring system indicated that someone tampered with the
ankle mo nitor. He arrived a t the house where Ap pellant was living at a pproximately 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. Gentr y stepped about2 four feet into the gar ag e. Just before entering the garage, Gentry though t he heard “ hey ” or

“ what do you want ? ” Gentry responded, “ Parole Officer Gentry. I ’ m h ere to check my equipment. ” Appellant stood in the d oorway of the house dressed in shorts and a t

- shirt

. Gentry
then took a photo with his cell phone to docu me nt that Appellant was not wearin g his ankle monitor as he was required to do. This apparent ly en raged 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 th e hous e yelling, “ Oh, oh, oh. I ’ ve got som ething for you

. ” Gentry testified that the blow caused pain to his wri st a nd hand that he descr ibed as a stinging, pulsing pai n that lasted about an hour. Gent ry returned to his vehicle , drove down the
street and called 9

- 1

- 1 to summon assistance. W hen Gentry returned with other officers to Appellant ’ s house, they found th e monitor base unit smashed into pieces and lying in the driveway. Appellant refu sed t o exit the house. A standoff ensued until a SWAT team armored
vehicle knocked the fron t door open, and Appellant was taken into custody.
At the conclusion of tr ia l, the jury found Appellant g uilty of assault on a public servant
and s ente nced him to life in prison. This proceeding followed.

S UFFICIENCY OF THE E V IDENCE In this first issue, Appellant maintains that the evidence is insufficient to es tablish that h e
p ossessed the requisite intent required to commit the offense. In his secon d iss ue, Appellant
contends th e evidence is insufficient to establish that Parole Officer G entry sustained bodily injury. We will address the se two issues together.
Standard of R ev i ew An appellate court reviews a challenge to the sufficiency of the evide nce under the

s tandard of review set forth in Jackson v. Virginia

. 443 U.S. 307, 319 , 99 S. Ct. 2781, 278 9, 6 1 L. Ed. 2d 560 (1979) ; Brooks v. State , 323 S.W.3d 893, 912 (Tex. C r im. App. 2010). A challenge to the sufficiency of the evidence requires t he reviewing court t o consider the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could
have found all the element s of the off en s e 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 an d the weight to be giv en their testimony, and the reconciliation of conflic ts in the
evidence. Whitaker v. State , 977 S .W.2d 595, 598 (Tex. Cr im. App. 1998). “ When the reco rd3 supports conflicting inferences, we presume that the fact finder resolved the co n flicts in favor of the prosecution and therefore defer to that determinati on. ” Clayton v. State , 235 S.W.3d 772, 778 (Tex. C rim. App. 2007). In viewing the record, direct and circumstantial evid ence are treated equally; circumstantial evidence is as p ro b ative a direct evidence in establishing the guilt of the actor, and
circum stantial evidence alone can be sufficient to establish guilt. Id. a t 778 ; Dansby v. State , 530 S.W.3d 213, 22 6 (Tex. App

. — T yler 2017 , pe t. ref ’ d).
A pplicable Law
An actor commits an assault if he “ intentionally , knowing, or recklessly cause s bodily injury to another. T EX

. P ENAL C ODE A NN

. § 22

. 01 (a)(1) (West Supp. 2019). The Texas Penal
Code defines “ bodily injury ” as “ physical pain , i llness, 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 sufficie nt to establish the element of “ bodily injury

. ” See Laster v. State , 27 5 S.W.3d 512, 524 (Tex. Crim. App. 2009). When consi dering whether e vidence is suffi cient to establish that a victim suffered pain, juries may use common sense and apply c ommon knowledge, observation, and experien ce gained in ordinary aff a irs of life, u s i n g inferences that
reasonab ly could be drawn from the evidence. Wawr ykow v. State , 866 S.W.2 d 87, 88

- 89 (Tex. App.

— Beaumont 1993, pet. ref ’ d). Intent is typically proven through circumstantial evidence and may be infer red from a
defendant ’ s words or co nd u ct. State v. Fuller , 480 S.W.3d 812 , 823 (Tex. App.

— Te xarkana 2015, pet. ref ’ d). Circumstantial evidence of an accused ’ s mental state must be reviewed with
the same scrutiny as other elements of a n offense

. Las ter , 275 S

. W. 3d at 5 19

- 2 0

. Th e statutory definition of “ bodily injury ” includes “ even re l atively m inor physical contact if i t cons t itutes

mor e than offensive tou c hing. ” I d

. at 5 24. T he jury may in f er the existence of the c ulpable
mental state from any acts tending to prov e its existenc e, including the acts, words, and conduct
of the accused , the method of comm itting t h e crime, and the wounds inflicted on the victim s. 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 [14 th Dist.] 2007, pet

. dism ’ d ). The legal sufficiency of t he evid e nce is measured by the elements of the offense as defined by a hypot hetically c orrect jury charge. Malik v. State , 953 S.W. 2d 234, 240 (Tex. Crim. App. 1997). A “ hypothetically correct ” jury charge is “ one that accurately set s out the4 law, i s aut horized by the indictment, does not unne cessar ily increase the State ’ s burde n o f proof

or unneces sar ily restrict the State ’ s theo ries of liability, and adequately describes the particular
offense for which the defendant was tried. ” Id

. There are thr ee co nduct e l ements 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. S tate , 884 S.W.2d 485, 487 (Tex. Crim. App. 1994). A prop er jury charge li mits the
definit i ons of the applicable cu lpable mental states to include only the lan guage 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) . T h erefore, the definitions of the cu lpable men tal states (intentionall y, knowingly, or recklessly) should be limited to include the r esult of conduct
element. In Re I.L ., 389 S.W.3d at 45 1

. So limited t he culpable mental states alleged should be
defined as follows:

A p erson 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, o r with knowl e dge, with respect to a result of his conduct when he is aware that his conduct is reasonabl y c ertain to

c ause the result. A pe rson acts recklessly, or is reckless, with respect to the result of his conduct when he is aware of but cons ciously disregards a substant ial a nd unjustifi a ble risk that the result will occur.

Price , 457 S.W.3d at 443.
Discussi on The indictment charged t hat Appellant did intentionally, knowingly, and recklessly cause
bod ily injury to Gentry by striking him wi th his ha nd and that Appellant did then and th e re know that Gentry was a public servant lawfully discharging an official duty. Appellant ackn owledges
that he intentionally slapped the cell phone from Gentry ’ s hand. But he argues that there was no
evidenc e that he acted with the culpable mental state required for conviction. Common experience justified the jury ’ s belief that Appellant knew tha t 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 entitl ed to infer f rom the sudden and violent nature of the attack that Appellant knew that hitt ing Gentry ’ s h and was reasonabl y certain to cause pain. The jury was also entitled to infer from Appellant ’ s lang uage and conduct that, although aware of the5 sub stantial and unjustified risk of injury to Gentry, Appellant consciously disregarded it. The

ev idence is su fficient to support the jury ’ s implicit finding of the culpable m ental state allege d. Appellant also insists there is no objective evidence that G entry suffer e d pain as a result of the assault. Gentry di d not seek medical attention after the a ssault. T here was no evidence of visible injury to Gentry ’ s hand or wri st. In reporting the assault to Depu ty Steve Dunklin almost immediately thereafter, G entry told D u nklin, “ He hit my hand. That ’ s assault on a public

servant. ” Appellant a rgues that Gentr y did not tell Depu ty Dunklin that he felt pain

. Gentry testif ied at trial that he f elt a “ sting i ng, pulsing pain ” in his wri st and hand “ for

a

bout an hour ” after the ass ault. Dunklin stated in his testimony that Gentry said he felt pain when Appellant stru ck him and that he included th is fact in his report

. Gentry ’ s trial testimony regarding the pain inflicted by Appe llant ’ s blow is sufficient, in it self, to establish the element of bodily injury. See Laster , 275 S.W.3d a t 524.
V iewing the evidence in the light most favorable to the State, we conclude that t he
evidence is suffic ient to prove Appellant ’ s cu lpable me ntal state and G e ntry ’ s injury. Appellant ’ s first two issues are ov e rruled.

A DMISSION OF E VIDENCE In issue three, Appellant complains that the trial court abused its discretion in admitting testimony that officers found a gun in A pp ellant ’ s mother ’ s bedroom after he was arrested. Pr ior to testimony, the State informed the court that it intended to offer testimony that the officers found a pistol in t he house where Appellant lived. Out of the presence of the jury, the court

overru le d Appellant ’ s o bjections that evidence of the pistol was not relevant to the charged
offense and was unduly prejudicia l. Deputy Dunklin subsequent ly testified that when officers enter ed the home a fter the end of the standoff and after Appellant ’ s ar rest, 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 t h is testimony constituted evidence of an extraneous offense
with no proof that he c om mitted the offense. Appellant a lso maintains th at ev idence of the pistol ’ s presence was unrelated to any issue in the case.6 Standard o f Review An appellate court revi ews the trial court ’ s decision to admit or exclude evidence for
ab u se of discretio n. See Zuliani v. State , 97 S.W.3d 589, 595 (Tex. Crim. A pp. 2003). An a buse
of discretion in the admis sion of evidence occurs when the decision is so cle arly wrong as to lie

o utside the zone within which reasonable person s might disagree. M c

Donald v. State , 179 S.W.3d 571, 576 (Tex. Crim. App. 2005). Applicab le Law
In a case where the court has over ruled an objection to evidence, the ruling usually will
not be reversible erro r when the same evidence is subsequently admitted without objec tio n. See Massey v. St at

e , 933 S.W .2d 141, 149 (Tex. Crim. App. 1996). Howe ver, an exception to this
rule is that the harmful effect of improperly admitted evidence is not cured by the fact that the defendant sough t to meet, destroy or explain it by intr oducing rebutting evidence. Leday v.
State , 9 83 S.W.2d 713, 7 1 8

- 1 9 (Tex. Crim. App. 1998). Testimony elicited during cross
examination may come within the exception. Valcarcel v. State , 765 S.W.2d 412, 418 (Tex. Crim. App. 1989).
Evidence of an extraneou s offense “ i s not admissible t o prove a person ’ s charac ter in
order to show that o n a part icular occ asion the person acted in accordance with the character. ”
T EX

. R. E VID

. 40 4 (b)(1). An extraneous offen se is not admissible unless the State clearly proves
the defendant committed it, t ha t it is relevant to a material issue, and that its p robative value is not substantially outw eighed by its p rejudicial effect. Wyl e v. State , 777 S.W.2d 709, 715 (Tex.
Cri m. App. 1989). A defendant may respond to evidence of an extraneo us offense admit te d over objection. Le day , 983 S.W.2d at 718 n.9.
A n adverse ruling on a pretrial motion to suppress evidence wi ll ordinarily suffice to preserve error on appeal, and a def endant need not specifically object to the evidence when it is
lat er offered at tr ia l. Thomas v. State
, 408 S.W.3d 877, 881 (Tex. Crim . App. 20 13). An
affirmative statement of “ no objection ” will ordinarily constitute a waiver of the right to raise on
ap peal the error that was previously preserved. Id . at 881

- 82. The court of c rimin al appeals has
stated that the application of th is rule i s c on te xt dependent.

By that we mean that an appellate court should not focus exclusively on the state ment it self, in i solation, but should consider it in the context of t he entire ty of the record . If the record as a whole plainly demon strates that the defendant did not intend, nor did the trial court construe, his

“ no objection ” statement to constitute an aband onment of a claim of error that he had earlier7 preserved for a pp eal, th en the appellate court should not regard the claim a s “ wa ived, ” but should resolve it on the merits. On the other ha n d, if from the record as a whole the appellate court simpl y cannot tell whether an abandonment was intended or un derstood, then, co nsisten t with prior case law, it should reg ard t he “ no objection ” state m ent to be a waiver of the earlier

- preserved error. Under the latter circumstances, the affirmative “ no objection ” statem ent will , by itself, serve as an unequivocal indication that a waiver was both intended and understoo d.

Id

. at 885

- 86.
Discussion
The State doe s not respond to Appellant ’ s arguments attacking the trial judge ’ s ruling admitting the challenged evidence. The State co nt ends that , after the tri a l court ’ s ruling , Appellant wa iv ed or abandoned his claim of err or for pur p oses of appeal. The State cites multiple instances during trial which it claims indicate Appellant ’ s abandonment of his objection to the pistol eviden ce. Appellant did not object to the State ’ s mention of the p ist ol during its

open ing statement

. Appellant, in his opening statement, ment ioned “ 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 d is cus sing what was depi cted in the photographs of the pisto l . He did not ob j ect to a patrol sergeant ’ s testimony concerning a “ .22 firear m ” possibly being in Appellant ’ s house, and the danger it could pose to officers. Appellant cross exami ned
the same w it nes s abo ut “ the gun being in the house. ” When questioning Investigator Ron Rathbun, defense counsel elicited t estimony about the “ .22 cali ber handgun. ” During c losing

ar gume nt s, Appellant did not object to the prosecutor ’ s m ention of the threat of gunfire. Appella nt insists tha t bec ause he object ed and obtain ed an adverse ruling outs ide the presence of the jury, he did not have to reiter ate his objection before the jury at every mention of the pistol d uring the openi ng statements, the testimony, o r f ina l ar guments. Appellant insists that
his counsel did no t intend to abandon the obje ction when he said , “ N o objection to the offer ”
when t he State offered p ict ures with the pistol in the background. Appell ant argues that his
counsel mu st hav e fa iled t o s ee the pistol in the pictures when he stated that he had no objection. Appellant argu es he did not aba n don the claim of error, because th ere was “ no sound strategic

reason ” to do so. The pistol was found i n the bedroom of Appellant ’ s m other. She owne d t he house.
There was no ev idence linking the pistol to Appellant. An extraneous offen se is inadmissible unless the Sate proves beyond a reasonable doub t that the defendant committed it. Harrell v.
State , 8 84 S.W.2d 154, 160 (Tex. Crim. App. 1994). Fu rth er, the pres ence of the gun in his8 mother ’ s bedroom was unre lated to proof of any elem ent 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 th at the danger of unfair prejudice of the p istol evidence substantially outweighed its neg li gible probat ive value. See T EX

. R. E VID . 403. W e conclude that the trial
court erred in overrul ing Appellant ’ s objection to the evidence of the pistol. Although not d efe nding the lower court ’ s ruling, the State argues that Appellant ’ s l ater statement of “ no objection ” forfeited the earlier p reserved e rror. E ven if we assume error was preserve d and not waived or ab andoned, it is still sub ject t o a harmless err or review. The improper admis sion of an extraneous offense is non constitutional

error a nd must be disregarded under Texas Rule of Ap p ellate Procedure 44.2(b) unless it affected
the defendan t ’ s substantial ri g hts

. A substantial right is a ffected where t he error had a substantial and injurious effect or influence on the jury ’ s verdict. Kin g v. State , 953 S.W.2d 266, 271 (Tex. Crim. Ap p. 1997). Substantial rights are not affected by the erroneous admission o f evidence if, after examining the record as a wh ole, we have a fair assurance that the error did not influence the jury, or had but a slight aff ect. Motilla v. St ate , 78 S.W.3d 35 2 , 355 (Tex. Crim. App. 2002 ).
To assess the likelihood that the error adv ersely affected the jury ’ s dec ision, we consid er the
entire record. Id

. The reviewing court must consider the character of the allege d error, and how it might be considered w ith o ther evidence, the extent the error was emphasized by the State, and
the we ight a juror would likely plac e on the error. Id. at 355

- 56

. E vidence of guilt is a factor in any thor ough harm a nalysis. Id. at 35 8. If the error was of the magnitude to pr ejudice the jury ’ s evaluation of the evidence, th e conviction is tainted despite overwhelming evidence of the
defendant ’ s guilt. Harri s v. State , 790 S.W.2d 5 68, 58 8 (Tex. Crim. App. 1989)

. There is noth ing in the record showing Appellant ever had the pistol in his possession

. The Sheriff ’ s deputies were not aware o f the pistol in the house until Appellant ’ s sister asked her mother if there was a gun in th e house. The mother, who was n ot in the house during the
standof f, said the pistol was on the highboy. That is where the officers found it when they f inally

enter ed the house. H owe ver, the prosecution repeatedly alluded to the danger present ed by the pi stol. The pistol evidence c ould have had little influence on the jury ’ s determination that Gentry was a parole officer or that he felt pain when Appellan t struck his wri st and h and

. Extraneous offense evidence tends to show that the defendant is a bad person generally.9 Therefore, it ma y improperly contribute to th e se verity of punishment imposed. In this case, Appellant had seven felony convictions. He had vio lated previous p rob ations 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 ar mored v ehicle to breach th e fron t door of his mother ’ s house. Having considered the enti re record, we conclude that the error did not influ ence th e jury ’ s decision on Appellant ’ s conviction or punishment , or had but slight effe ct. Appellant ’ s third issue is ov erruled.

E XCLUS ION OF E VIDENCE In his fourth issue, Appell ant contends the trial court abused its discretion in excl uding testimony that the Parole Board fired Gentry for misconduct involving a parolee under his

s upervision.
Pri or t o trial, the Sta te filed a motion in limine to prevent Appellan t from introducing
evid ence that Gen try had engaged in in app r opriate conduct as a parole officer. On August 9, 2018, a parolee complained that Gentry attempted to est ablis h an inappropria te r elationship with
her between October 2016 and December 20 17. The Of fice of the Inspector General , after conducting a n investigation, concluded that Gentry “ did engage in an improper employee/offender relationship ” by giving a v id eo game to the paro lee ’ s children. Shortly thereafter, Gent ry was no lo nger employe d as a parole officer. During tri al, w ithout objection, t he State elicited testimony from Gentry that he had
testified before Appellant ’ s parole hearing in August 2018 that he felt pa in w hen Appellant
struck him. This statement was consist ent with his earlier testimo ny in this case. On cross examination, Ap pellant contended to the trial court that the State ’ s introduction of a specific prior consistent statement permi tted the defense to introduce specific prior acts of the witness
reflecti ng on his credibility

. On appeal, Appellant contends the trial court erred in excluding the evidenc e showing motive or bias, because it sho we d “ Gentry had a motive to be a compl ainan t in a crim inal case , because he knew that a [former] femal e parolee was lurking in t he shadows who could (and did) cost him his job. ” Appellant also argues on appe al that the trial court should have admitted the10 evidence to correct the false impression that Gentry was a parol e officer in goo d st anding at the
time of trial.
A t trial, Appellant so ught to introduc e evidence of G entry ’ 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 irrel evant collateral mat ter, and (2) it was barred by T exas Rule of Evidence 608(b) as an inquiry into a specific instance of the witness ’ s conduct to attac k his character for
truthfulness.
The grounds for the admission of the OIG report a rgued on appeal do not c om port with
those presented to th e trial court and no er ror was pre served. See Guevara v. S t ate , 97 S.W.3d 579, 583 (Tex. Crim. App. 2003). Moreo ver, only the most improbable reasoning supports Appellant ’ s argument that the Inspector Genera l ’ s report would h av e exposed bias or moti ve. There was no evidenc e at trial that Gentry was presently a parole officer. If Appellant wanted the jury to know t hat Gentry was no longer a parole officer, he needed only to have asked him on
cross examinatio n. Appellant ’ s fo r th issue is overruled.

F AI LURE TO I NSTRUCT J URY ON L ESSER I NCLUDED O FFENSE In his fifth issue, A ppellant contends the trial court erred in fai ling to submit to the jury
an instruction on Class A assault.
Standard of Re view and Applic able Law
A trial cour t ’ s denial of a lesser in cluded offen se in struction is reviewed for abuse of
discretion. See Threadgill v. S tate , 146 S.W.3d 654, 666 (Tex. Crim. App. 2004). When
determ in ing whether the trial court properly refused a request for a less er included offen se in struction, the appell ate court rev iews 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 inclu ded offense
inst r uction in the jur y cha rge when (1) the requ ested ch arge is for a lesser included offense of the charged offense, and (2 ) there is some evidence that, if the defendan t 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 de fendant to a lesser included offense instruction, “ it is not enough th at the jury may disbelieve crucial evidence pertaini ng to the greater offense , but rather, there must be some11 evidence directly germ ane to the lesser

- included offense for the finder of fact to con s ider before

an instruction on a lesser

- included offense is warranted. ” S w eed 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. deni ed , 523 U.S. 107 9 , 118 S

. Ct

. 1526, 140 L. Ed. 2d 677 (1998) ) . More tha n a scintilla of evidence requires the submission of a lesser inc luded offense i nstruction. Id

. A defendant charged with assault on a public servant is entitled to an instruction on Cla ss A misdem ean o r

as sau lt if evidence from any source raises a fact question as to whether he knew the comp lainant 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 evid ence as ra isi ng a fac t 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 h ave concluded that Gentry did not tell him he was a parole officer when Gentry in stalle d
the ankle mo nit or on Ma y 18. He also contends that the jury could also have determined that , when G entry returned three days later, Gentry did not identify himself a s a parole officer, or, if he did, A ppellant did not hear him or did not be lieve him becaus e of his appearance

. T here was no evidence offered at tr ial t hat Appellant was unaware that Gentry was a parole off icer 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 Offic er Gentry . I ’ m here to check

my equipment

. ”
T he co nclusions argued for by Appellant would depend solely on the jury ’ s disbelief in
the trial evidence. This is insufficient. There must be some e viden c e “ directly germane ” to the
lesser included offen se that would warrant an i ns truction. S w eed , 35 1 S.W.3d at 68. There is no
such evidence in the record.
A ppellant ’ s fifth issue is overruled.

C UMULATIVE E RROR In his sixth issue, Appellant mainta i ns the cumulative effect of the trial court ’ s e rrors denied him a fair trial.12 Appli cable Law
A numb er 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 7 66, 767 (Tex. Crim. App. 2013) ; see also Chamberlain v. State , 998 S.W.2d 230 , 238 (Tex. Crim. App. 1999)

. “ A

s tring of harmless errors does not arithmetic ally create rever sible , cumul ative 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 ach iev e “ the critical mass necessary to cast a shadow on the integrity of the verdict

. ” Id

. Discuss ion
W e have determined that th e trial court erred only in admitting evidence of the pistol in Appellant ’ s mother ’ s house , an error which we determined i s harmless . We have found no other

error s to cumulate with the sole error found . Nonerrors may not in thei r cumu lative effect caus e

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

. Appellant ’ s sixth issue is overrule d.

C RUEL AND U NUSUAL P UNISHMENT In his seventh issue, Appellant contends th at the life sentence imp osed on him as a
habitua l offender constitutes cruel and un usual punishm ent in violation of the Eighth
Amen dment. Appellant argues that , viewed in the light most favorable to the verdict, the record
shows that he did no more tha n slap a cell p hone out of a public servant ’ s hand, causing transient pai n but l eaving no visible in jury and r equiring no medi ca l attention. There fore, 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 waive r , App ellant ’ s Eighth
Amendment claim is merit less. Applicable Law
The Ei ght h Ame ndment forbi ds sentenc es that are grossly di sproportionate to the c rime
for which the defendant has been convicted. U.S. C ONST . am end. VIII; see also Solem v. Helm , 463 U.S. 277, 290, 103 S. Ct. 3001, 30 10 , 77 L. Ed. 2d 637 (1983 ). Factors that may be used in
det e rmining the pro portionality of a sentence a re (1) the gravity of the offense and the harshness of the penalty, (2) the sentences imposed on other cri minals in the same juris diction, and (3) the13 sentences imposed for the same crime in other jurisdi ctions. 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 s hows that the sentence is not grossly disproportionate, the reviewing court need not
consider the last tw o factors of the Solem test. McGruder v. Puc kett , 9 54 F .2d 313, 316 (5 th Cir. 1992). The se verity of the sentence imposed on a habitual offender shou ld not be compared
with the ser iousne ss of the most recent offense, a s it stands alone, but in ligh t of the offender ’ s prior offenses. Id

. With out 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. A pp

. 1996) (waiver with regard to rig h t s under the Texas Constitution); Curry v. St ate , 910 S.W.2d 490, 497 (Tex. Crim. A pp. 1995) (waiver with regard to rights under United States Constitut ion);
Rob ertson v. State , 245 S.W.3d 545, 549 (Tex. App.

— Tyler 2007 , pet. ref ’ d).
Discuss ion App ellant argues that an Eighth Amendment claim th at th e sentence is disproportionate to the crime committed should be cognizable on appe al despite the absence of an objection at trial,

“ because it does not become ripe until the ju ry return s a ve rdict , at which tim e an object ion

wo uld be fu tile because the trial court c ann ot correct the error. ” Appellant insists that freedom from cruel and unusual punishment is a right “ so fundamental to the proper functioning of our adjudicatory proce ss ” that it shoul d not be cons idered forfeited on appeal unless the record
reflect s that it has been “ plainly, freely, and intelligently ” waived at trial. In Proenza v. State , 541 S.W.3d 7 86 (Tex. Crim. App. 2017), the court of criminal appeals held t hat th e right to be

t ried in a pro ceeding devoid of improper judicial commentary is a right that will not be
considered waive d on appeal unless the record clearly reflects that the app ellant “ p lainly, freely, and intellig ently ” waived that right at trial. Id

. a t 801. Appell ant maintains that in l ight of
Proenza , the c ourt of c riminal a ppe als is unlikely to require a trial objection to prese rve an Eight h Amendment claim on appeal.
Even if we assume that no trial objection was required to preserve error, A pp ellant still

c annot prevail. In th is case, Appellant was convicted of assaultin g a public servant for the
second time. He had accumulated six other felo ny convictions. He had violated the conditions of the several probated sentences he had received. Wh en granted par ole, he ab sconded . His last arrest came after a protr acted st andoff only en ded by the use of the SWAT team ’ s specially14 modified armored person nel carrier. In determini ng whether A ppellant ’ s sentence is unconstitutionally disprop ortio na te, Appellant ’ s record must be cons ider ed 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. 113 3, 63 L. Ed. 2d 382 (1980) . Rummel received a mandatory life

sente nc e under a prio r version of t he Texa s habitual offender statute for th ree nonviolent property crimes where the total amount taken in all three cr imes amounted to ju st under $230.
445 U.S. at 265

- 66, 100 S. Ct. at 1135. The Sup reme Court held that the mandatory life se ntence imposed on Rummel di d not constitute cruel and u nusual p unishment. 445 U.S. at 285, 1 0 0 S.
Ct. at 1 145. In light of Rummel , Appellant ’ s sentence is not unconsti tutionally disproportionate.
A bsent a threshold showing of disprop ortionality, we need not apply th e second and third Solem
ele ment s. Appellant ’ s se venth issue is overruled.

D ISPOSITION The judgment of the t rial court is affirmed

.

B ILL B ASS Justice

Opinion delive red September 9 , 2020. Panel co nsisted of Worthen, C.J., Neeley, J. , and Bass, Ret ired J., Twelfth Court of Ap peals, sitting by assi gnment.

( DO NOT PUBLISH )

## COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT OF TEXA S

JUDG MENT

SEPTEMBER 9 , 2020

NO. 12

- 1 9

- 00258

- CR

LARRY COLEM AN HIC KS , Appell ant V. THE STATE OF TEXAS , A ppellee

Appeal from t he 114th District Court
of Smit h County, Texas (Tr.Ct.No. 114

- 0976

- 18 ) THIS CAUSE came to be heard on the appellate record and br ief s f il ed herein, and the same being considered, it is the opinion of this c ourt that there was no error in the judgment.
It i s therefo re ORDERED, ADJUDGED and DECREED that the judgment of
the cour t below be in all things affirmed , and that this decision be ce rt ified to the court below
for observance.
Bill Bass , Justice

. Pane l co nsisted of Worthen, C.J., Ne eley, J ., and Bass, Re tired J., Twelfth Court of Appeals, sitting by assignment.