Kevin Lee Zeller v. the State of Texas

Affirmed and Memorandum Opinion filed May 23, 2024.

In The

Fourteenth Court of Appeals

NO. 14-22-00809-CR

KEVIN LEE ZELLER, Appellant
V.
THE STATE OF TEXAS, Appellee

On Appeal from the 10th District Court
Galveston County, Texas
Trial Court Cause No. 21-CR-0476

MEMORANDUM OPINION

Appellant Kevin Lee Zeller appeals his conviction for assault of a family
member with a prior family-violence conviction, a third-degree felony. See Tex.
Penal Code Ann. § 22.01(b)(2)(A).1 In four issues, Zeller contends (1) the trial
court erred in admitting evidence of his 2018 misdemeanor conviction for assault-

1
Texas Penal Code § 22.01(b)(2)(A) was amended effective September 1, 2023. See Act
of May 24, 2023, 88th Leg., R.S., ch. 694, § 1. The citations in this opinion refer to the prior
version of the statute, which is applicable to Zeller due to the date of this offense.
family violence, which elevates the degree of this offense to a third-degree felony,
in the guilt phase of trial; (2) a 2019 felony conviction should not have been used
for enhancement because it was not final before the 2018 misdemeanor conviction;
and (3)–(4) his sixty-year sentence is excessive in violation of the Eighth
Amendment of the United States Constitution and article I, § 13 of the Texas
Constitution. We affirm.

I. BACKGROUND

Zeller dated Kathy, the complainant, in a two-and-a-half-year relationship
that friends described as rocky. The relationship ended on February 16, 2021, the
night of a winter freeze, when Kathy awoke to Zeller hitting her in the face and
head. The two were staying in Zeller’s garage apartment in Texas City, Texas, and
Zeller spent the day helping his boss prepare for the anticipated ice storm. When
Zeller later left to help his boss with some burst pipes, Kathy took a nap on the
sofa. After he returned, Zeller punched Kathy in the face so many times that she
thought she passed out. Zeller believed at the time that she had been exchanging
text messages with another man. Over a period of hours, Zeller then refused to
allow Kathy to move about or leave the garage apartment. At one point Kathy was
crying and begging for water or ice because the blood in her mouth was drying up.
Zeller chewed some ice and spit it in her face. Kathy was badly beaten, with two
black eyes, extensive bruising around her forehead, cheek, mouth, ear, and eye
orbit, and a bloodied nose and mouth. Her right eye was swollen shut.

Zeller took Kathy’s cell phone from her, but when he fell asleep, she was
able to slip it out of his pocket. Around 3:00 a.m., she texted a friend’s boyfriend
for help and sent a picture of her battered face. The friend called the police and
stayed in contact with the officers after they arrived at Zeller’s garage apartment.

When the police knocked on the door, no one responded. Through a hole in
2
the wooden façade of the garage, the police could see Zeller standing inside and
could hear two people talking. While refusing to open the door to the garage,
Zeller denied that Kathy was in the garage apartment and subsequently denied that
he and Kathy had been fighting. After more than fifteen minutes of asking to enter
to check on Kathy, and for Zeller to come outside, the police started to force entry
into the garage. Zeller finally opened the garage door but immediately ran further
into the garage apartment and then resisted arrest. The police found Kathy inside,
crying.

Zeller was charged with assault-family violence with a prior conviction in
May 2018 for assault-family violence (“2018 misdemeanor conviction”). The State
also alleged in two enhancement paragraphs that Zeller had been convicted of two
previous felonies—in December 2005 for burglary of a habitation and in July 2019
for assault-family violence, second offense (“2019 felony conviction”). In the 2018
misdemeanor conviction and 2019 felony conviction cases, Kathy had been the
victim.

Trial commenced on September 27, 2022. The jury found Zeller guilty of
assault-family violence with a previous conviction as charged in the indictment.
Zeller then pleaded true to the two enhancement paragraphs of the indictment, and
the jury assessed punishment at sixty years’ imprisonment and a $10,000.00 fine.
At sentencing, the State abandoned the fine because the habitual offender statute
does not provide for one. The trial court thus sentenced Zeller to sixty years’
imprisonment. This appeal followed.

II. PRIOR CONVICTION FOR FAMILY VIOLENCE

In his first issue, Zeller argues the trial court erred in allowing evidence of
his 2018 misdemeanor conviction during the guilt-innocence phase of trial. The
State responds that Zeller has not preserved this issue for appeal because he did not
3
object to evidence of the 2018 misdemeanor conviction when it was admitted in
evidence.

In the guilt-innocence phase of trial, the State offered State’s Exhibit 17 into
evidence as proof to elevate the current offense to a third-degree felony. See id.
§ 22.01(b)(2)(A); Holoman v. State, 620 S.W.3d 141, 142 (Tex. Crim. App. 2021)
(concluding the aggravating factors set forth in this penal code subsection
constitute alternative additional elements to establish a third-degree felony). State’s
Exhibit 17 is a certified copy of the judgment in Zeller’s 2018 misdemeanor
conviction, which includes a family violence finding. At trial, the State’s witness,
Patrick Ryan, testified as a fingerprint expert and verified that Zeller’s thumbprint
matched the thumbprint of the defendant in State’s Exhibit 17. When the State
offered State’s Exhibit 17 into evidence, Zeller’s trial counsel stated that she had
“[n]o objection, your Honor.”2

To preserve a challenge to the trial court’s admission of evidence, the record
must show that the party made a timely and specific objection on the record, unless
the specific grounds are apparent from the context, and obtained an adverse ruling
on that objection. See Tex. R. App. P. 33.1(a); Tex. R. Evid. 103(a); Turner v.
State, 805 S.W.2d 423, 431 (Tex. Crim. App. 1991). Because there was no
objection at trial, we conclude that Zeller has not preserved this issue for our
review. See Tex. R. App. P. 33.1(a); see also Balbisi v. State, No. 14-19-00798-
CR, 2021 WL 4472540, at *4 (Tex. App.—Houston [14th Dist.] Sept. 30, 2021, no
pet.) (mem. op., not designated for publication) (concluding that lack of objection
regarding evidence of multiple extraneous offenses waived the issue for appeal).

We overrule issue one.

2
Similarly, at other times when the 2018 misdemeanor conviction was raised, such as
voir dire, reading of the indictment to the jury, and opening statements, Zeller did not object.

4
III. ENHANCEMENT

In his second issue, Zeller argues that if his 2018 misdemeanor conviction is
an element of the current offense, then the evidence failed to show that his 2019
felony conviction became final before commission of the current offense, and it
thus should not have been used to enhance his punishment to that of a habitual
offender. See Tex. Penal Code Ann. § 12.42(d). The State responds that (1) Zeller
cannot raise this issue on appeal because he pleaded true to the enhancements and
stipulated to evidence of the previous felonies; (2) the date of the 2018
misdemeanor conviction is not an element of the current offense; and (3) the State
proved the 2019 felony conviction was final before the date of the current offense.

Without the enhancement of his punishment, Zeller cannot be sentenced to
more than ten years’ imprisonment for his third-degree felony. See id. § 12.34;
Coleman v. State, 631 S.W.3d 744, 755–56 (Tex. App.—Houston [14th Dist.] pet.
ref’d). But under the habitual offender statute, if it is shown “that the defendant has
previously been finally convicted of two felony offenses, and the second previous
felony conviction is for an offense that occurred subsequent to the first previous
conviction having become final,” then the punishment range for his third-degree
felony is enhanced to a term of “life, or for any term of not more than 99 years or
less than 25 years.” See Tex. Penal Code Ann. § 12.42(d); Coleman, 631 S.W.3d at
755–56. At trial, the State sought to enhance Zeller’s punishment through two
enhancement paragraphs, including the 2019 felony conviction.

When a defendant pleads true to an enhancement paragraph, the State is
relieved of the burden of proving the enhancements, and the defendant cannot
complain on appeal that the evidence is insufficient to support the enhancements.
Harvey v. State, 611 S.W.2d 108, 111 (Tex. Crim. App. 1981). The record shows
that in the punishment stage of trial, the prosecutor read the two enhancement

5
paragraphs to the jury and Zeller pleaded “true” to them.

There is a narrow exception to this general rule—when the record
“affirmatively reflects” that that the enhancement itself is improper. Ex parte Rich,
194 S.W.3d 508, 513 (Tex. Crim. App. 2006); Mikel v. State, 167 S.W.3d 556,
559–60 (Tex. App.—Houston [14th Dist.] 2005, no pet.). Zeller contends that his
case fits within this narrow exception in an argument entailing four steps: (1) that
his 2018 misdemeanor conviction, including its date, is an element of the current
offense; (2) because the date of the 2018 misdemeanor conviction is an element of
the current offense, 2018 operates as the date of the current offense if the State
wishes to enhance punishment under the habitual offender statute; (3) any felony
convictions alleged as enhancements under the habitual offender statute must have
become final before 2018; and (4) the record affirmatively reflects that the 2019
felony conviction used as an enhancement occurred after 2018.

However, step one of Zeller’s argument has been previously rejected in
analogous cases. See Reyes v. State, 314 S.W.3d 74, 82 (Tex. App.—San Antonio
2010, no pet.); Manning v. State, 112 S.W.3d 740, 743 (Tex. App.—Houston [14th
Dist.] 2003, pet ref’d). Like here, the court in Reyes addressed an appeal for
assault-family violence in which the offense had been elevated to a third-degree
felony due to a prior family violence conviction, and the defendant was eligible for
enhanced punishment as a habitual offender due to two previous felony
convictions. Reyes, 314 S.W.3d at 76, 81. In Reyes, the defendant contended that
the date of his prior family violence conviction was an element of the assault for
which he was charged. Id. at 80. The court in Reyes examined the assault statute
and concluded that “[n]othing in the language of [Texas Penal Code § 22.01]
suggests the date of the prior assault conviction must be proven; it must only be
shown to have occurred prior to the present assault.” Id. The court further

6
concluded “[a]lthough proof of a prior assault conviction is an element of the
offense, the date on which the conviction occurred is not an element of the
offense.” Id. at 82. Similarly, this court has previously concluded that “appellant’s
position makes the date of the prior conviction an element of the current offense,
when the State is only required to prove that at the time of the current offense the
defendant had the status of having been previously convicted” of assault-family
violence. Manning, 112 S.W.3d at 743. Based on Manning and Reyes, we agree
that the date of the prior family-violence conviction is not an element of the current
offense.

Moreover, the record shows Zeller committed this offense on February 16,
2021. The enhancement paragraphs of the indictment state that he was convicted of
the previous two felonies on December 19, 2005, and July 22, 2019, respectively.
Because he pleaded true to the enhancement paragraphs, Zeller may not complain
of insufficient evidence proving the allegations contained in the enhancement
paragraphs. Manning, 112 S.W.3d at 744.

Finally, we see nothing in the record that affirmatively reflects the
enhancement was improper. Mikel, 167 S.W.3d at 559–60. In addition to his plea
of true, Zeller signed a stipulation that listed his convictions for the two felonies
used to enhance his punishment. Certified copies of the judgments for those two
previous felonies were also admitted in evidence. Those judgments show final
convictions of December 19, 2005, and July 22, 2019, before this offense occurred.
See Tex. Penal Code Ann. § 22.01(b)(2)(A).

We overrule issue two.

7
IV. CRUEL AND UNUSUAL PUNISHMENT

In his third and fourth issues, Zeller asserts his sixty-year sentence violates
the prohibitions in the United States and Texas Constitutions against cruel and
unusual punishment. U.S. CONST. amend. VIII; Tex. Const. art. I, § 13. Assault-
family violence, second offense, is a third-degree felony, punishable by two to ten
years’ imprisonment. See Tex. Penal Code Ann. §§ 12.34(a); 22.01(b)(2)(A).
Because Zeller’s punishment was enhanced by two prior felony convictions, he
was subject to imprisonment as a habitual offender for either life or any term of not
more than ninety-nine years or less than twenty-five years. See id. § 12.42(d).

Most complaints, even constitutional errors, can be waived on appeal if not
raised in the trial court. Garza v. State, 435 S.W.3d 258, 260–61 (Tex. Crim. App.
2014); see also Compton v. State, 666 S.W.3d 685, 713–14 (Tex. Crim. App. 2023)
(concluding Eighth Amendment issue arising in voir dire was not preserved with a
contemporaneous objection); Curry v. State, 910 S.W.2d 490, 497 (Tex. Crim.
App. 1995) (holding defendant waived complaint concerning cruel and unusual
punishment by not objecting at trial). A complaint that a sentence is grossly
disproportionate and constitutes cruel and unusual punishment may be preserved
by objecting at the punishment hearing or when the sentence is pronounced. See
Burt v. State, 396 S.W.3d 574, 577 (Tex. Crim. App. 2013). An appellant may
raise a sentencing issue for the first time in a motion for new trial only if he did not
have an opportunity to object during the punishment hearing. Burt, 396 S.W.3d at
577 n.4.

In this case, Zeller did not object when the jury returned its decision after the
punishment phase of trial or when the trial court pronounced his sentence, though
he was not prevented from doing so. Zeller instead raised the issue for the first
time in his motion for new trial. Because Zeller had the opportunity to timely

8
object to his sentence and did not, we conclude that he failed to preserve this issue
for our review. See Tex. R. App. P. 33.1(a)(1); Burt, 396 S.W.3d at 577–78; see
also Nieves-Perez v. State, No. 12-19-00389-CR, 2021 WL 1047209, at *3 (Tex.
App.—Tyler Mar. 18, 2021, pet. ref’d) (mem. op., not designated for publication)
(concluding that an appellant may complain about cruel and unusual punishment
“for the first time in a motion for new trial only if he did not have an opportunity to
object during the punishment hearing.”).

Even if Zeller preserved these issues, we cannot conclude the trial court
abused its discretion in denying his motion for new trial. 3 The Eighth Amendment
to the United States Constitution provides that “[e]xcessive bail shall not be
required, nor excessive fines imposed, nor cruel and unusual punishments
inflicted.” U.S. CONST. amend. VIII. This provision was made applicable to the
states by the Due Process Clause of the Fourteenth Amendment. Meadoux v. State,
325 S.W.3d 189, 193 (Tex. Crim. App. 2010). Similarly, the Texas Constitution
provides that “[e]xcessive bail shall not be required, nor excessive fines imposed,
nor cruel or unusual punishment inflicted.” Tex. Const. art. 1, § 13. The difference
between the Eighth Amendment's “cruel and unusual” phrasing and the Texas
Constitution’s “cruel or unusual” phrasing is insignificant. Cantu v. State, 939
S.W.2d 627, 645 (Tex. Crim. App. 1997).

These provisions generally require punishment to be proportional to the
crime committed. Solem v. Helm, 463 U.S. 277, 290 (1983); Cantu v. State, 939
S.W.2d at 645. The provisions do not require strict proportionality, however; they
only prohibit extreme sentences that are “grossly disproportionate” to the crime.
State v. Simpson, 488 S.W.3d 318, 322 (Tex. Crim. App. 2016) (quoting Ewing v.
3
Zeller’s motion for new trial was overruled by operation of law. We review the denial
of a motion for new trial for an abuse of discretion. Quick v. State, 557 S.W.3d 775, 788–89
(Tex. App.—Houston [14th Dist.] 2018, pet. ref’d).

9
California, 538 U.S. 11, 23 (2003) (plurality opinion)). Solem sets forth a three-
part test to determine if a sentence is unconstitutional, 463 U.S. at 292, but the
threshold determination is whether the sentence is disproportionate. See McGruder
v. Puckett, 954 F.2d 313, 316 (5th Cir. 1992); Welch v. State, 335 S.W.3d 376, 380
(Tex. App.—Houston [14th Dist.], pet ref’d). A punishment will be grossly
disproportionate only in “exceedingly rare” or “extreme” cases. Simpson, 488
S.W.3d at 322–23.

Typically, a punishment within the prescribed statutory range of punishment
for an offense is not grossly disproportionate, cruel, or unusual. See Simpson, 488
S.W.3d at 323. Moreover, courts that have addressed whether Texas’s habitual
offender statute rises to the level of being cruel and unusual punishment have
concluded that it does not. See, e.g., Rummel v. Estelle, 445 U.S. 263, 285 (1980)
(addressing Texas’s predecessor recidivist statute); Harris v. State, 656 S.W.2d
481, 486 (Tex. Crim. App. 1983) (same); Moore v. State, 54 S.W.3d 529, 541
(Tex. App.—Fort Worth 2001, pet. ref’d); Price v. State, 35 S.W.3d 136, 143–44
(Tex. App.—Waco 2000, pet. ref’d); see also, e.g., Sharpe v. State, No. 07-21-
00221-CR, 2022 WL 1668355, at *7 (Tex. App.—Amarillo 2022, no pet.) (mem.
op., not designated for publication); Nieves-Perez, 2021 WL 1047209, at *4;
Randle v. State, Nos. 05-20-00290-CR, 05-20-00292-CR, 2022 WL 99730, at *3,
(Tex. App.—Dallas, Jan. 11, 2022, no pet.) (mem. op., not designated for
publication);.

To determine whether a sentence for a term of years is grossly
disproportionate, a court must judge the severity of the sentence in light of (1) the
harm caused or threatened to the victims, (2) the culpability of the offender, and
(3) the offender’s prior adjudicated and unadjudicated offenses. Quick, 557 S.W.3d
at 789. Here, the evidence at trial shows that Zeller assaulted Kathy while she was

10
asleep by punching her repeatedly in the head and face. He then locked Kathy and
himself in the garage apartment and prevented her from leaving. Hours later, with
drying blood around her mouth, she asked for water. In response, Zeller chewed up
ice and spit it in her face. By around 3:00 a.m., she was able to get her cellphone to
silently text a friend for help. After police arrived, they had to attempt a forced
entry into the garage before Zeller would open the door. Zeller then ran and
resisted arrest. Inside, Kathy was crying, her face badly beaten and bruised, with
one of her eyes swollen completely shut and blood dried on her face. Her lip had
been split and was bloody, and her teeth had been “messed up.” Kathy’s swollen
eye continue to bleed for days, and she was in severe pain. Kathy testified that she
was afraid and thought Zeller was going to kill her that night.

As to culpability and prior offenses, the record also shows that Zeller had
nine prior criminal convictions and had committed offenses while addicted to
drugs. Two of Zeller’s prior convictions were for assaults against Kathy. In the
punishment phase of trial, Zeller denied that he was guilty of the 2018
misdemeanor assault against Kathy, claiming he only pleaded guilty because he
wanted to go home. He blamed Kathy for much of their tumultuous relationship
and physical violence, saying she would initiate punching or striking him when he
argued with her. In contrast, Kathy and her friend both testified at trial that Zeller
had been physically abusive to Kathy on other occasions. On one occasion, the
friend had also been pushed by Zeller “out of the way, so he could lock [Kathy]
into the garage.” In his testimony, Zeller denied restraining Kathy inside the garage
apartment on the night of the offense. However, the police body camera video
showed that Zeller said that Kathy was not in the garage, stonewalled police for
over fifteen minutes after they knocked and asked him to open the door and come
outside, and refused to open the door even he after he admitted Kathy was there

11
and police demanded to “make sure she’s fine,” “let me check on her, come on,
man,” and “I need to see that she’s fine.” Further, when Zeller was resisting arrest,
he can be heard on the body camera video crying out, “You did this to me, Kathy.”

Considering the nature of Zeller’s actions, the degree of harm he caused, his
culpability, and his prior offenses, Zeller’s sixty-year sentence is not grossly
disproportionate and falls within the limits of the habitual offender statute. See
Tex. Penal Code Ann. § 12.42(d); see also Holley v. State, 167 S.W.3d 546, 549–
50 (Tex. App.—Houston [14th Dist.] 2005, pet. ref’d) (punishment within the
statutory guidelines is not excessive). We conclude that the trial court did not
abuse its discretion in overruling Zeller’s motion for new trial. We overrule issues
three and four.

V. CONCLUSION

Having overruled Zeller’s four issues, we affirm the trial court’s judgment.

/s/ Margaret “Meg” Poissant
Justice

Panel consists of Justices Hassan, Poissant, and Wilson.
Do Not Publish — TEX. R. APP. P. 47.2(b).

12