Case Number: 02-16-00376-CR

Judge: Elizabeth Kerr

Court: COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH

Plaintiff's Attorney: Catherine Luft

Defendant's Attorney: Brian Salvant
Adam L. Arrington

Description: Around 5:00 a.m. on February 28, 2016, an inmate-related disturbance in
the Denton County Jail’s Special Housing Unit delayed distribution of the
inmates’ breakfast trays.2 When inmate Emanuel eventually received his tray, he
complained that his breakfast was cold and requested a “Johnny Sack”—an
alternative inmate meal that is served in a brown paper bag, usually containing a
sandwich, cookies, and juice. After this request was denied, Emanuel grew
agitated, began yelling loudly, and repeatedly banged on his cell door.
Several detention officers responded to this disturbance, including
Corporal Marcus Unuigbey, who told Emanuel multiple times to stop striking his
cell door. Emanuel ignored these instructions, began removing his clothes, and
stated that if he did not receive a Johnny Sack, he was “gonna go off.” Unuigbey
interpreted this as an indication that Emanuel was preparing to fight. To prevent
Emanuel from harming himself or others, Unuigbey decided it was necessary for
officers to enter Emanuel’s cell and place him in a safety-restraint chair.3
2The Special Housing Unit is an isolated housing unit comprising single inmate cells located within the Denton County Jail’s pretrial building. 3When an inmate becomes violent and could potentially harm himself, others, or property, a Denton County Jail supervisor may decide to place an inmate in a safety-restraint chair—a device that uses several straps to secure an inmate in a seated position. Unuigbey testified that in the past inmates have injured their hands and feet while intentionally striking a cell door. He explained
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After formulating a plan, five jailers entered Emanuel’s cell and quickly took
him to the ground. Emanuel resisted as the jailers placed him in handcuffs and
leg irons. Unuigbey then entered Emanuel’s cell to assist them. Once Emanuel’s
hands and legs were secured, the jailers helped him to his feet and placed him in
the safety-restraint chair.
Emanuel continued resisting as he was being strapped into the chair.
Suddenly, several jailers heard Emanuel make a sound with his mouth like he
was preparing to spit or “hock a [loogie].” At that moment, Corporal Blane
Foreman, who was positioned behind Emanuel, tried to maneuver Emanuel’s
head backwards to prevent him from spitting. But it was too late.
Contemporaneously, Unuigbey witnessed what appeared to be saliva fly towards
Officer David Smith’s face. Startled by the impact, Smith jerked back and wiped
his face with his gloved hand.
None of the other jailers actually saw Emanuel spit at Smith, but Smith
testified at trial that “quite a bit of spit” covered the right side of his face. After
Emanuel was secured in the chair, Smith flushed his eye and was examined by
Kristeen Koerber, the jail’s emergency medical technician. Smith’s blood was
later drawn for additional testing, but he was not contacted about the results and
thus assumed that no news was good news.
that his decision to restrain Emanuel was made based on these past experiences.
4
Emanuel was charged by indictment with harassment by persons in certain
facilities. See id. § 22.11. The indictment included a habitual-offender notice, and
the State notified Emanuel that it intended to use, for sentence-enhancement
purposes, his 1995 felony conviction for unauthorized use of a vehicle and his
1998 felony conviction for possession of a controlled substance. See id.
§ 12.42(d) (West Supp. 2017). The jury returned a guilty verdict, and at the
punishment phase, the State presented additional evidence detailing Emanuel’s
extensive criminal history, which included nine previously adjudicated offenses.4
Finding the allegations in the enhancement paragraphs true, the jury gave
Emanuel 30 years.
4In addition to the 1995 and 1998 felony convictions used to enhance Emanuel’s punishment, the State presented evidence of seven other adjudicated offenses, to which Emanuel had previously pleaded guilty: (1) unlawful delivery of a controlled substance, state-jail felony, one-year sentence (1998); (2) theft, state-jail felony, 180-day sentence (2004); (3) assault bodily injury, class A misdemeanor, one-year sentence (2005); (4) robbery by threat, second-degree felony, four-year sentence (2006); (5) unauthorized use of a vehicle, state-jail felony, 8-month sentence (2010); (6) resisting arrest, class A misdemeanor, 45day sentence (2012); and (7) evading arrest, state-jail felony, eight-month sentence (2012). The trial court also admitted evidence of two other assault offenses for which Emanuel pleaded guilty but received deferred adjudication subject to community supervision. Several motions to proceed with an adjudication of guilt were filed in connection with these offenses, but it is unclear whether these motions were granted.
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Discussion I. Evidentiary Insufficiency In his first point, Emanuel contends that the evidence was insufficient to
support the jury’s guilty verdict because no rational factfinder could have found
beyond a reasonable doubt that his saliva made contact with Smith’s face. A. Standard of Review In our due-process review of evidentiary sufficiency to support a
conviction, we view all the evidence in the light most favorable to the verdict to
determine whether any rational factfinder could have found the crime’s essential
elements beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319,
99 S. Ct. 2781, 2789 (1979); Jenkins v. State, 493 S.W.3d 583, 599 (Tex. Crim.
App. 2016). This standard gives full play to the factfinder’s responsibility to
resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable
inferences from basic facts to ultimate facts. Jackson, 443 U.S. at 319, 99 S. Ct.
at 2789; Jenkins, 493 S.W.3d at 599.
The factfinder alone judges the weight and credibility of the evidence. See
Tex. Code Crim. Proc. Ann. art. 38.04 (West 1979); Blea v. State, 483 S.W.3d
29, 33 (Tex. Crim. App. 2016). Thus, when performing an evidentiary-sufficiency
review, we may not re-evaluate the evidence’s weight and the witnesses’
credibility and then substitute our judgment for that of the factfinder. See
Montgomery v. State, 369 S.W.3d 188, 192 (Tex. Crim. App. 2012). Instead, we
determine whether the necessary inferences are reasonable based on the
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cumulative force of the evidence when viewed in the light most favorable to the
verdict. Murray v. State, 457 S.W.3d 446, 448 (Tex. Crim. App.), cert. denied,
136 S. Ct. 198 (2015). We must presume that the factfinder resolved any
conflicting inferences in favor of the verdict, and we must defer to that resolution.
Id. at 448–49; see Blea, 483 S.W.3d at 33. B. Analysis Emanuel was charged with harassment by persons in certain facilities
under penal code section 22.11, which, as authorized by the indictment, required
the jury to find that Emanuel, while imprisoned or confined in the Denton County
Jail, a correctional or detention facility, caused David Smith to contact Emanuel’s
saliva. See Tex. Penal Code Ann. § 22.11(a). Emanuel argues that because the
substance on Smith’s face was not tested, a rational factfinder could not have
found beyond a reasonable doubt that the substance was saliva or that it came
from Emanuel. We disagree.
Taken at its face value, the evidence supports a reasonable inference that
the substance was in fact Emanuel’s saliva. Several jailers, including Unuigbey,
Foreman, and Smith, testified that while placing Emanuel in the safety restraining
chair they heard Emanuel make a noise that sounded like he was preparing to
spit or “hock a [loogie].” Reacting to this noise, Foreman tried to maneuver
Emanuel’s head to prevent him from spitting, but despite Foreman’s efforts,
Unuigbey saw a substance that appeared to be saliva fly towards Smith’s face.
Smith testified that “quite a bit of spit” landed on his face, covering his right eye,
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the right side of his nose, and the right side of his mouth. A video recording taken
by another jailer captured Smith’s reaction as he jerked back and wiped his face.
The jail’s emergency medical technician further described the shocked look on
Smith’s wet face as he exited Emanuel’s cell, and she explained that although
she did not test the “thick, wet substance” on Smith’s face for the molecular
properties of saliva, she knew that it was not just sweat or moisture.
We are unpersuaded by Emanuel’s argument that without having been
presented with test results confirming that the substance was his saliva—the
same substance that flew from his mouth towards Smith’s face—no rational
factfinder could have found beyond a reasonable doubt that Emanuel caused his
saliva to contact Smith’s face. Indeed, it is the jury’s responsibility to draw such
inferences. See Jackson, 433 U.S. at 319, 99 S. Ct. at 2789. Viewing the
evidence in the light most favorable to the verdict, the jury could have reasonably
concluded that Emanuel spat saliva on Smith’s face. See Jenkins, 493 S.W.3d at
599. We overrule Emanuel’s first issue. II. Inadmissible Evidence During the punishment phase, the trial court admitted evidence of
Emanuel’s extensive criminal history, including a 2006 indictment for possession
of a controlled substance and an order dismissing that indictment due to
Emanuel’s conviction in another case, over Emanuel’s relevance and Rule
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403 objection.5 See Tex. R. Evid. 401, 403. In his second point, Emanuel
contends that the trial court erred by admitting this particular evidence because
the 2006 possession charge was dismissed and thus could not have helped the
jury in assessing his sentence. Emanuel further argues that the danger of unfair
prejudice substantially outweighed the evidence’s probative value because it
could confuse and mislead the jury about Emanuel’s involvement in possession
of a controlled substance. A. Standard of Review After a defendant has been found guilty, “evidence may be offered by the
state . . . as to any matter the court deems relevant to sentencing.” Tex. Code
Crim. Proc. Ann. art. 37.07, § 3(a)(1) (West Supp. 2017).6 The rules of evidence
are helpful in determining what is admissible under article 37.07, section 3(a), but
the rules’ definition of “relevance” is not a perfect fit in the punishment context.
See Rogers v. State, 991 S.W.2d 263, 265 (Tex. Crim. App. 1999); see also
Hayden v. State, 296 S.W.3d 549, 552 (Tex. Crim. App. 2009) (“Borrowing from
5Emanuel was also charged with possession of a controlled substance in 1998. He was convicted of a second-degree felony in that case and received three years’ confinement. The 1998 conviction was one of the felonies used to enhance Emanuel’s sentence. See supra note 4. 6See also Sierra v. State, 266 S.W.3d 72, 79 (Tex. App.—Houston [1st Dist.] 2008, pet. ref’d) (noting that “a wide scope of evidence of any ‘bad acts’ is allowed at the punishment phase”); Stanley v. State, No. 02-16-00176-CR, 2018 WL 359903, at *6 (Tex. App.—Fort Worth Jan. 11, 2018, no pet. h.) (mem. op., not designated for publication) (noting that unadjudicated extraneous offenses are not categorically inadmissible under article 37.07, section 3(a)(1)).
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the definition of ‘relevant’ in Texas Rule of Evidence 401 is of little avail because
the factfinder’s role during the guilt phase is different from its role during the
punishment phase.”); Jones v. State, 963 S.W.2d 177, 183 (Tex. App.––Fort
Worth 1998, pet. ref’d) (explaining that “‘relevancy’ in the context of a punishment
hearing is a normative process to be employed by the fact finder and is not
governed by rule [of evidence] 401.”). Instead, the emphasis is on what will help
the jury assess an appropriate sentence. Erazo v. State, 144 S.W.3d 487,
491 (Tex. Crim. App. 2004). Thus, determinations of relevance during the
punishment phase are a function of policy, including “(1) giving complete
information to the jury to allow it to tailor an appropriate sentence for the
defendant; (2) the rule of optional completeness; and (3) whether the appellant
admits the truth during the sentencing phase.” Id.
We review a trial court’s decision to admit extraneous-offense evidence for
an abuse of discretion. See Ellison v. State, 86 S.W.3d 226, 227 (Tex. Crim. App.
2002); Mitchell v. State, 931 S.W.2d 950, 953 (Tex. Crim. App. 1996). A trial
court abuses its discretion if it admits evidence in the punishment phase “that is
not relevant by any reasonable interpretation or if what appears to be common
experience is really no more than the operation of a common prejudice, not
borne out [of] reason.” Ramos v. State, 45 S.W.3d 305, 310 (Tex. App.—Fort
Worth 2001, pet. ref’d). Rule of Evidence 403 limits the trial court’s ability to
admit offense evidence where the evidence’s prejudicial or inflammatory effect
outweighs its probative value. Cox. v. State, 931 S.W.2d 349, 357 (Tex. App.––
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Fort Worth 1996), pet. dism’d, 951 S.W.2d 5 (Tex. Crim. App. 1997); see also
Rogers, 991 S.W.2d at 266–67; Webster v. State, No. 2-03-051-CR,
2004 WL 1067770, at *1 (Tex. App.––Fort Worth May 13, 2004, no pet.) (mem.
op., not designated for publication). B. Analysis Assuming, without holding, that the trial court erred by admitting the
evidence related to the 2006 possession charge, this does not rise to the level of
reversible error. Error in the admission of evidence is generally considered
nonconstitutional error to which we apply rule 44.2(b), and we disregard the error
if it did not affect appellant’s substantial rights. Tex. R. App. P. 44.2(b); see
Solomon v. State, 49 S.W.3d 356, 365 (Tex. Crim. App. 2001). “A substantial
right is affected when the error had a substantial and injurious effect or influence
in determining the jury’s verdict.” King v. State, 953 S.W.2d 266, 271 (Tex. Crim.
App. 1997). We will not intervene if after examining the whole record, including
the character of the alleged error and how it might be considered in connection
with other evidence in the case, there is a fair assurance that the error did not
influence the jury, or had but a slight effect. Motilla v. State, 78 S.W.3d 352,
355 (Tex. Crim. App. 2002) (quoting Solomon, 49 S.W.3d at 365).
Based on the record before us, this evidence could have had no more than
a slight effect on the jury’s decision. The trial court admitted—without objection—
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evidence of nine previously adjudicated offenses.7 This includes the two felony
convictions the State used to enhance the applicable sentence,8 as well as an
assault conviction, a resisting-arrest conviction, and an evading-arrest conviction.
Given Emanuel’s extensive criminal history, we are unpersuaded by the notion
that the evidence in question was the proverbial straw that broke the camel’s
back. Even Emanuel acknowledges that the State had no great need for this
particular evidence because it had presented ample other evidence illustrating
his robust criminal history.
Furthermore, the 2006 motion to dismiss, which was admitted over
Emanuel’s objection, clearly indicated that the possession charge was dismissed
due to Emanuel’s conviction in another case. The jurors were instructed not to
consider, for any reason, any extraneous acts or transactions that they did not
believe beyond a reasonable doubt Emanuel had committed or participated in.
See Huizar v. State, 12 S.W.3d 479, 484 (Tex. Crim. App. 2000) (op. on reh’g).
We presume that the jury followed the trial court’s instructions and did not
consider the 2006 indictment or motion to dismiss unless it believed beyond a
reasonable doubt that Emanuel was in possession of a controlled substance as
charged in 2006. See Jenkins, 493 S.W.3d at 616. Based on our review of the
7See supra note 4. 8The enhancement paragraphs included Emanuel’s 1995 felony conviction for unauthorized use of an automobile and his 1998 felony conviction for possession of a controlled substance.
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record, any error the trial court might have theoretically committed by admitting
the evidence of Emanuel’s 2006 possession charge did not have a substantial
and injurious effect on the jury’s determination of Emanuel’s punishment. See
Tex. R. App. P. 44.2(b); see also Ramos, 45 S.W.3d at 310-11. We therefore
overrule Emanuel’s second issue. III. Disproportionate Sentence In his third point, Emanuel contends that his 30-year sentence is
disproportionate to the crime for which he was convicted and thus violates the
Eight Amendment’s ban on cruel and unusual punishment. The offense for which
Emanuel was convicted—harassment by persons in certain correctional
facilities—is a third-degree felony and ordinarily carries a punishment of between
two and ten years’ confinement and a fine not to exceed $10,000. See Tex.
Penal Code Ann. § 12.34 (West 2011), § 22.11(b). The jury, however, found the
allegations contained in both sentence-enhancement paragraphs true; Emanuel
thus faced punishment of either life imprisonment or any term between 25 and
99 years. Id. § 12.42(d). The jury gave him 30 years. A. Standard of Review Proportionality of punishment is embodied in the Eighth Amendment’s ban
on cruel and unusual punishment and requires that the punishment fit the
offense. U.S. Const. amend VIII. Generally, punishment that is within the
statutory range is not excessive, cruel, or unusual under the Eighth Amendment
and will not be disturbed on appeal. State v. Simpson, 488 S.W.3d 318,
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323 (Tex. Crim. App. 2016) (citing Ex parte Chavez, 213 S.W.3d 320, 323–
24 (Tex. Crim. App. 2006)); Davis v. State, No. 02-15-00183-CR, 2016
WL 3452786, at *3 (Tex. App.—Fort Worth Oct. 12, 2016, pet. ref’d) (mem. op.,
not designated for publication).
In determining whether a sentence is grossly disproportionate to a
particular crime, the court must examine (1) the sentence’s severity in light of the
harm caused or threatened to the victim, (2) the offender’s culpability, and (3) the
offender’s prior adjudicated and unadjudicated offenses. Graham v. Florida,
560 U.S. 48, 60, 130 S. Ct. 2011, 2021 (2010); see also McGruder v. Puckett,
954 F.2d 313, 316 (5th Cir.), cert. denied, 506 U.S. 849 (1992); Simpson,
488 S.W.3d at 323; Moore v. State, 54 S.W.3d 529, 542 (Tex. App.—Fort Worth
2001, pet. ref’d). In those rare times when this threshold is met and gross
disproportionality is determined, the court must then compare the defendant’s
sentence with sentences given to other defendants in the same jurisdiction and
with sentences imposed for the same crime in other jurisdictions. Graham,
560 U.S. at 60, 130 S. Ct. at 2022; Simpson, 488 S.W.3d at 323; Moore,
54 S.W.3d at 542.
To preserve a complaint for appellate review, an appellant must present
the trial court with a timely request, objection, or motion stating the specific
grounds for his desired ruling. Tex. R. App. P. 33.1(a)(1)(A); Rhoades v. State,
934 S.W.2d 113, 119 (Tex. Crim. App. 1996). A defendant must raise a
disproportionate-sentencing objection in a timely manner. Sample v. State,
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405 S.W.3d 295, 303–04 (Tex. App.––Fort Worth 2013, pet. ref’d); Kim v. State,
283 S.W.3d 473, 475 (Tex. App.––Fort Worth 2009, pet. ref’d). B. Analysis When sentenced, Emanuel voiced no objection. Emanuel later filed a
motion for new trial in which he complained that his sentence violated the Eighth
Amendment. But there is no showing that Emanuel presented the motion to the
judge or otherwise had a hearing. The clerk’s record is missing the trial court’s
docket sheet that might have indicated Emanuel’s presentment of his motion for
new trial. Accordingly, it is not clear whether Emanuel preserved his Eighth
Amendment claim. See Nelson v. State, No. 02-16-00184-CR,
2017 WL 3526340, at *13 (Tex. App.––Fort Worth Aug. 17, 2017, no pet.) (mem.
op., not designated for publication). Regardless, Emanuel’s argument is without
merit.
At first glance, 30 years’ confinement for spitting on a jailer might intuitively
seem disproportionate. “Outside the context of capital punishment,” however,
“successful challenges to the proportionality of particular sentences have been
exceedingly rare.” Rummel v. Estelle, 445 U.S. 263, 272, 100 S. Ct. 1133,
1138 (1980). In a more recent plurality decision, the United States Supreme
Court weighed a petitioner’s history of recidivism and held that an enhanced
sentence of 25 years for stealing three golf clubs was not grossly
disproportionate. Ewing v. California, 538 U.S. 11, 29–30, 123 S. Ct. 1179,
1189–90 (2003) (plurality opinion); see also Rummel, 445 U.S. at 281–84,
15
100 S. Ct. at 1143–44 (holding that life in prison for obtaining $120.75 by false
pretenses was not grossly disproportionate considering that petitioner had two
prior felony offenses and would have the possibility of parole).
The Rummel Court discussed the importance and general constitutionality
of recidivism statutes. 445 U.S. at 276, 100 S. Ct. at 1140. There, Texas’s
interest in the stiffer sentence was not merely in punishing Rummel’s actions but
in addressing the actions of people “who by repeated criminal acts have shown
that they are simply incapable of conforming to the norms of society” as
established by state law. Id., 100 S. Ct. at 1140. Because Rummel had twice
been imprisoned for felonies before committing the one that earned him a life
sentence, “Texas was entitled to place upon Rummel the onus of one who is
simply unable to bring his conduct” within the norms established by state law. Id.
at 284, 100 S. Ct. at 1144.
Similarly, Emanuel has shown an inability to conform his conduct to
established state law. Since 1995, Emanuel has been convicted of no fewer than
eight felonies (including the present conviction) and two class-A misdemeanors,
and has received deferred adjudication for two other felonies. And although he
was not sentenced to life, Emanuel’s complained-of sentence is similar to that in
Rummel because he has the possibility of parole. See Tex. Gov’t Code Ann.
§ 508.145(f) (West Supp. 2017) (providing eligibility for release on parole when
inmate’s calendar time served plus good conduct time equals one-fourth of the
sentenced imposed).
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Fortunately, Smith was not seriously injured when Emanuel spat on his
face, but we must not take lightly the threat of contracting a disease from
unwanted contact with another person’s bodily fluids. See Campbell v. State,
No. 05-08-00736-CR, 2009 WL 2025344, at *1 (Tex. App.––Dallas July 14, 2009,
pet. ref’d) (not designated for publication) (describing doctor’s testimony that it is
hypothetically possible for an HIV-positive person to transmit the disease by
spitting into another individual’s mouth). Furthermore, “the presence or absence
of violence does not always affect the strength of society’s interest in deterring a
particular crime or in punishing a particular criminal.” Rummel, 445 U.S. at 275,
100 S. Ct. at 1140. The State has an interest in maintaining the peace within
correctional facilities as well as in protecting the health and safety of its
correctional officers. After weighing Emanuel’s culpability and his propensity to
lapse back into criminal behavior, we do not find Emanuel’s 30-year sentence to
be grossly disproportionate. See id. at 265, 100 S. Ct. at 1134; see also Graham,
560 U.S. at 60, 130 S. Ct. at 2022. But cf. Solem v. Helm, 463 U.S. 277, 295–
303, 103 S. Ct. 3001, 3012–17 (1983) (holding life sentence disproportionate for
a defendant who wrote a no-account check for $100, in part because the
defendant’s past offenses were relatively minor, nonviolent, and none was a
crime against a person). Because Emanuel’s sentence does not meet the
“grossly disproportionate” threshold, we do not examine his comparative
sentencing evidence. See Graham, 560 U.S. at 60, 130 S. Ct. at 2022; Simpson,
488 S.W.3d at 323. We overrule his third issue.

Outcome: Having overruled Emanuel’s three issues, we affirm the trial court’s
judgment.

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