COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 2-09-122-CR

NO. 2-09-123-CR

MICHAEL D. PRICE APPELLANT

V.

THE STATE OF TEXAS STATE

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FROM THE 297TH DISTRICT COURT OF TARRANT COUNTY

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MEMORANDUM OPINION

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Appellant Michael D. Price appeals his two sentences for aggravated

assault with a deadly weapon. In one point, Price argues that the trial court

abused its discretion in assessing his sentence. We will affirm.

In May 2005, Price became involved in a vehicle chase with police when

a police officer pulled up behind Price at a stop sign and Price “floored it” after

1 See Tex. R. App. P. 47.4.
making a turn. DeAnna Snyder was a passenger in Price’s vehicle, which

eventually collided with a vehicle being driven by Clark Birdsall. Both Snyder

and Birdsall suffered injuries requiring hospitalization and surgery.

Price pleaded guilty to two offenses of aggravated assault with a deadly

weapon and true to the repeat offender notices. After the preparation of a

presentence investigation report, the trial court found Price guilty of both

offenses, made an affirmative deadly weapon finding, found the repeat offender

notices true, and sentenced Price to forty years’ confinement for each offense.

In his sole point, Price argues that the trial court abused its discretion by

sentencing him to forty years’ confinement for each aggravated assault offense.

He concedes that the trial court has great discretion to impose punishment

within the prescribed range,

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but he cites Jackson v. State, 680 S.W.2d 809

(Tex. Crim. App. 1984), and argues only the following:

The record reflects that the Appellant made significant steps at

rehabilitation for his drug addiction while incarcerated. A review of

his testimony and the exhibits introduced as defense exhibits . . .

reveal that the Appellant suffered from severe drug addiction which

led to his past law violations.

A review of the numerous defense exhibits reveal that Appellant

had, on his own, spent much of his pretrial incarceration studying

religious topics and taking classes offered in the jail to better

attempt his rehabilitation.

2 See Nunez v. State, 565 S.W.2d 536, 538 (Tex. Crim. App. 1978).

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In a previous memorandum opinion, this court stated of Jackson as

follows:

In Jackson, the trial judge who assessed punishment did not have

access to the transcript of the testimony at the guilt-innocence

phase of trial, no evidence was elicited at the punishment hearing,

and the trial court sentenced appellant based solely on a presentence investigation report. “The sentencing judge . . . was left

with nothing to base his determination as to punishment on except

the naked fact that appellant had been found guilty of the offense

of sexual abuse of a child.” “[U]nder the limited facts of th[e]

case,” the court of criminal appeals held that the trial court abused

its discretion by determining the appellant’s sentence in the

absence of any facts or evidence available to the court and upon

which the court could have relied in assessing punishment.

Sanders v. State, No. 02-07-00250-CR, 2008 WL 4601937, at *1 (Tex.

App.—Fort Worth Oct. 16, 2008, no pet.) (mem. op., not designated for

publication) (citations omitted). In this case, unlike the issue addressed in

Jackson, Price does not argue that the trial court abused its discretion in

sentencing him because it determined his sentences in the absence of any facts

or evidence.

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Instead, Price argues that the trial court abused its discretion by

sentencing him to forty years’ confinement for each offense because there is

evidence that he participated in drug rehabilitation and attended religious

classes while in jail. Price’s argument is, thus, that his sentences should have

3 Indeed, both sides presented evidence at punishment, and the trial

court noted on the record, “The Court has had an opportunity to hear and

consider the evidence and argument of counsel.”

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been lower because of his participation in these activities. Accordingly,

Jackson is inapposite to the argument that Price asserts in this appeal.

Price’s sentences fall within the statutory range of punishment for the

offenses for which he was convicted, and they are well below the maximum

term of years. See Tex. Penal Code Ann. § 12.32, 12.33, 12.42(b),

22.02(a)(2), (b) (Vernon Supp. 2009). Price does not argue that his sentence

is grossly disproportionate to the offenses committed. See Ex parte Chavez,

213 S.W.3d 320, 323–24 (Tex. Crim. App. 2006) (stating that a punishment

that falls within the legislatively prescribed range and is based upon the

sentencer’s informed normative judgment is unassailable on appeal, subject only

to “a very limited, ‘exceedingly rare,’ and somewhat amorphous Eighth

Amendment gross-disproportionality review”). We hold that the trial court did

not abuse its discretion by sentencing Price to forty years’ confinement for each

offense of aggravated assault with a deadly weapon, we overrule Price’s only

point, and we affirm the trial court’s judgments.

PER CURIAM

PANEL: MEIER, LIVINGSTON, and DAUPHINOT, JJ.

DO NOT PUBLISH

Tex. R. App. P. 47.2(b)

DELIVERED: December 17, 2009

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