Mack Davis aka Mark Davis v. The State of Texas

Fort Worth, Texas – Criminal Defense lawyer represented defendant with appealing from the court's revoking his deferred-adjudication community supervision charge.

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The State charged Davis under separate cause numbers with two second-degree

felonies: burglary of a habitation and possession of more than four grams but less

than 200 grams of heroin. See Tex. Penal Code Ann. § 30.02(a), (c)(2); Tex. Health &

Safety Code Ann. §§ 481.102(2), .115(d). The indictment in each cause included

identical habitual-offender notices, which, if found true, would enhance the

punishment range for each offense from two to twenty years in prison to

imprisonment for life or for "any term of not more than 99 years or less than

25 years.” See Tex. Penal Code Ann. §§ 12.33(a), .42(d).

On April 1, 2020, Davis judicially confessed to the facts alleged in the

indictments, pleaded true to the habitual-offender paragraphs, and entered open guilty

pleas to both offenses. That same day, Davis, his counsel, counsel for the State, and

the trial-court judge signed written plea admonishments in each case that stated,

among other things, that the punishment range was 25 to 99 years or life in prison.

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The trial court accepted Davis's pleas, found the habitual-offender paragraphs to be

true, deferred adjudicating Davis guilty, and placed him on eight years' community

supervision in each cause. Davis did not appeal the deferred-adjudication orders.

In June 2021, the State petitioned to proceed to adjudication in both causes

because Davis had violated several of his community-supervision terms and

conditions. At the October 12, 2021 revocation hearing, Davis pleaded true to

paragraphs one through seven as alleged in each petition.

1 In response to questioning

by the trial-court judge, Davis stated that he was pleading true freely and voluntarily

and that he understood that if the judge found those paragraphs to be true, the judge

could find Davis guilty and sentence him to "anywhere between 25 to 99 years or life”

in prison. The trial court accepted Davis's pleas of true, and after hearing argument

from counsel and testimony from Davis, the trial court found paragraphs one through

seven in each petition to be true and adjudicated Davis guilty of each offense.

Although Davis stated that he understood the consequences of pleading true to

the allegations in the State's adjudication petitions, he testified that he was confused

when his attorney2 had informed him that he was "looking at 25 to life.” During

closing, Davis's attorney asked the trial judge to withdraw its previous findings of true

1

Except for an additional paragraph in the adjudication petition in the heroinpossession case—which the State waived—the petitions were identical.

2

Davis's original attorney did not represent Davis during the revocation

proceedings.

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to the habitual-offender paragraphs. The trial court declined to do so and sentenced

Davis to 35 years' confinement for each offense, with the sentences to run

concurrently. Davis timely appealed. See Tex. R. App. P. 26.2(a)(1).

II. Davis's Guilty Pleas

In his first point, Davis argues that his guilty pleas to the underlying offenses

were not knowingly and voluntarily made because he was unaware that he would be

exposed to an enhanced punishment range for each offense as a consequence of his

pleas of true to the habitual-offender paragraphs. Davis asserts that when he pleaded

guilty, the trial court did not admonish him about the sentencing range or ask him if

he was aware of it, and that Davis gave no indication during the original plea

proceedings that he was aware of the punishment range.

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He also relies on his

testimony at the revocation hearing and an allegation that he has a history of mentalhealth issues.

Generally, a defendant placed on deferred-adjudication community supervision

may raise issues regarding the original plea proceeding only in an appeal taken when

the trial court first imposes deferred-adjudication community supervision. See Manuel

v. State, 994 S.W.2d 658, 661–62 (Tex. Crim. App. 1999); see also Tex. Code Crim.

Proc. Ann. art. 42A.755(e) ("The right of the defendant to appeal . . . shall be

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The reporter's record from the original plea proceedings is not in the record.

The record does, however, contain the written plea admonishments, which indicate

that the trial court did admonish Davis about the enhanced punishment range and

that Davis was thus aware of it.

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accorded the defendant at the time the defendant is placed on community

supervision.”). Unless an order placing a defendant on deferred-adjudication

community supervision is void, that defendant may not raise issues related to the

original plea proceeding—including voluntariness-related issues—in an appeal from a

subsequent adjudication proceeding. See Jordan v. State, 54 S.W.3d 783, 785 (Tex. Crim.

App. 2001); Manuel, 994 S.W.2d at 661–62; see, e.g., Lyle v. State, No. 02-17-00227-CR,

2019 WL 3024480, at *2 (Tex. App.—Fort Worth July 11, 2019, pet. ref'd) (mem. op.,

not designated for publication); Robinson v. State, Nos. 02-17-00054-CR, 02-17-00055-

CR, 2018 WL 1095793, at *2 (Tex. App.—Fort Worth Mar. 1, 2018, no pet.) (mem.

op., not designated for publication); Sonaty v. State, No. 2-05-257-CR,

2006 WL 1653364, at *1 (Tex. App.—Fort Worth June 15, 2006, no pet.) (per curiam)

(mem. op., not designated for publication). An involuntary guilty plea does not render

the resulting deferred-adjudication order void. See Jordan, 54 S.W.3d at 785; Pena v.

State, 551 S.W.3d 367, 370 (Tex. App.—Amarillo 2018, no pet.); see also Lyle,

2019 WL 3024480, at *2.

Because voluntariness-related issues related to the original plea proceeding

cannot be raised in an appeal from a subsequent adjudication proceeding, we do not

have jurisdiction to address Davis's first point. See Manuel, 994 S.W.2d at 660, 662;

Lyle, 2019 WL 3024480, at *2; Robinson, 2018 WL 1095793, at *2. We therefore

dismiss it. See Lyle, 2019 WL 3024480, at *2.

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III. Davis's Sentences

Davis argues in his second point that although the trial court's 35-year

sentences are within the statutory punishment range, they nonetheless violate the

Eighth Amendment's prohibition against cruel and unusual punishment because they

are grossly disproportionate to the crimes committed. See U.S. Const. amend. VIII;

Ewing v. California, 538 U.S. 11, 23, 123 S. Ct. 1179, 1186–87 (2003) (plurality opinion);

Harmelin v. Michigan, 501 U.S. 957, 1001, 111 S. Ct. 2680, 2705 (1991) (Kennedy, J.,

concurring); State v. Simpson, 488 S.W.3d 318, 322–23 (Tex. Crim. App. 2016).

To preserve a complaint for our review, a party must have presented to the trial

court a timely request, objection, or motion sufficiently stating the specific grounds, if

not apparent from the context, for the desired ruling. Tex. R. App. P. 33.1(a)(1);

Montelongo v. State, 623 S.W.3d 819, 822 (Tex. Crim. App. 2021). A complaint that a

sentence violates the Eighth Amendment's prohibition against grossly

disproportionate sentences is no different. See, e.g., Russell v. State, 341 S.W.3d 526,

527–28 (Tex. App.—Fort Worth 2011, no pet.); Kim v. State, 283 S.W.3d 473,

475 (Tex. App.—Fort Worth 2009, pet. ref'd); see also Fahmawi v. State, Nos. 02-16-

00325-CR, 02-16-00326-CR, 2017 WL 3081217, at *1 (Tex. App.—Fort Worth July

20, 2017, no pet.) (mem. op., not designated for publication) (citing cases). Here, as

the State points out, Davis did not object when the trial court sentenced him to

35 years' confinement in each cause, nor did he move for a new trial in either cause

raising his gross-disproportionality argument. Davis has thus failed to preserve this

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point for our review. See Russell, 341 S.W.3d at 527–28; Kim, 283 S.W.3d at 475; see also

Fahmawi, 2017 WL 3081217, at *1. We overrule Davis's second point.

We conclude that we have no jurisdiction to address Davis’s first point, which

attacks his original guilty pleas. Having overruled Davis’s second point, we affirm the trial court’s judgments.