Montay Harris v. the State of Texas

Affirmed as Modified and Opinion Filed July 8, 2024

S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-23-01154-CR

MONTAY HARRIS, Appellant
V.
THE STATE OF TEXAS, Appellee

On Appeal from the 204th Judicial District Court
Dallas County, Texas
Trial Court Cause No. F-1955587-Q

MEMORANDUM OPINION
Before Justices Smith, Miskel, and Breedlove
Opinion by Justice Miskel
Montay Harris appeals the trial court’s judgment adjudicating him guilty of

possession of methamphetamine in the amount of 4 grams or more but less than

200 grams. Harris pleaded true to the State’s allegation that he violated a condition

of his community supervision, and the trial court adjudicated him guilty and assessed

his punishment at six years of imprisonment.

Harris raises four issues on appeal that argue as follows: (1) the trial court

abused its discretion because its assessment of his punishment at six years of

imprisonment was arbitrary, unreasonable, and outside the zone of reasonable
disagreement; (2) his punishment is cruel and unusual in violation of the Eighth

Amendment; (3) his punishment is grossly disproportionate to his offense and

inappropriate to the offender in violation of his constitutional rights under article I,

§ 13 of the Texas Constitution; and (4) the judgment incorrectly refers to the terms

of a plea bargain and should be modified to delete that language.

We conclude that the trial court did not abuse its discretion when it assessed

Harris’s punishment at six years of imprisonment, and Harris failed to preserve for

appellate review his issues complaining that his punishment violates the U.S. and

Texas Constitutions. The trial court’s judgment contains errors so we modify the

judgment accordingly. We affirm the trial court’s judgment adjudicating guilt as

modified.

I. Procedural Background

Harris was indicted for possession of methamphetamine, which is a controlled

substance, in the amount of 4 grams or more but less than 200 grams on June 13,

2019. He pleaded guilty to the offense pursuant to a plea agreement containing a

sentence bargain.1 The trial court accepted his plea and placed him on deferred

adjudication community supervision for two years and assessed a fine in the amount

1
A “sentence bargain” refers to an agreement between the State and the defendant where the defendant
promises to plead guilty or nolo contendere to the pending charge or counts in exchange for a lesser
sentence. See Shankle v. State, 119 S.W.3d 808, 813 (Tex. Crim. App. 2003); Hodge v. State, No. 05-18-
00549-CR, 2019 WL 3212150, *2 (Tex. App.—Dallas July 9, 2019, no pet.) (mem. op., not designated for
publication).
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of $1,500, which was probated. The trial judge signed the order of deferred

adjudication on September 17, 2020.

On September 14, 2021, Harris was arraigned for violating of the terms of his

community supervision on September 10, 2021. The trial court’s arraignment sheet

states that he was under arrest and that there was a warrant for his probation

violation. On September 20, 2021, the State filed a motion to revoke Harris’s

community supervision and to proceed with an adjudication of guilt alleging he had

violated a condition of his community supervision by possessing a firearm. Further,

the trial court’s docket sheet states that the State and the defense agreed to a bond

on September 21, 2021, and the October 17, 2021 bail bond states that it was for a

probation violation in this case.

Harris pleaded true to the allegation pursuant to an open plea agreement with

the State. After a hearing on November 8, 2023, where Harris presented evidence

in mitigation of his punishment, the trial court granted the State’s motion to revoke

Harris’s community supervision, adjudicated him guilty of possession of

methamphetamine in the amount of 4 grams or more but less than 200 grams, and

assessed his punishment at six years of imprisonment.

II. Adjudication of Guilt and Assessment of Punishment

In issue one, Harris argues the trial court abused its discretion because its

assessment of his punishment at six years of imprisonment was arbitrary,

unreasonable, and outside the zone of reasonable disagreement. He claims that,

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although he pleaded true to the allegation that he violated his community

supervision, he provided a reasonable explanation for his possession of the firearm

so his punishment was unreasonably harsh. In effect, Harris contends that the trial

court did not take into account the evidence relating to the circumstances

surrounding his community-supervision violation. The State responds that the trial

court did not abuse its discretion because it assessed his punishment within the

applicable range of punishment for the offense.

A. Standard of Review

A trial judge is given wide latitude to determine the appropriate sentence in a

given case. Tapia v. State, 462 S.W.3d 29, 46 (Tex. Crim. App. 2015). A reviewing

court cannot step into the shoes of the trial judge and substitute its judgment for hers

unless that trial judge has clearly abused her discretion. Id. A trial judge does not

abuse her discretion unless her decision was arbitrary or unreasonable and was

outside the zone of reasonable disagreement. See State v. Hill, 499 S.W.3d 853, 865

(Tex. Crim. App. 2016); Johnson v. State, 490 S.W.3d 895, 908 (Tex. Crim. App.

2016). Generally, as long as the sentence is within the proper range of punishment,

it will not be disturbed on appeal. See Foster v. State, 525 S.W.3d 898, 911 (Tex.

App.—Dallas 2017, pet. ref’d) (citing Jackson v. State, 680 S.W.2d 809, 814 (Tex.

Crim. App. 1984)).

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B. Applicable Law

The offense of possession of a controlled substance in Penalty Group 1, which

includes methamphetamine, is a second-degree felony if the amount of the controlled

substance possessed is, by aggregate weight, including adulterants or dilutants,

4 grams or more but less than 200 grams. TEX. HEALTH & SAFETY CODE ANN.

§§ 481.102(6), 481.115(d).2 An individual adjudged guilty of a second-degree

felony shall be punished by imprisonment for any term of not more than 20 years or

less than 2 years. TEX. PENAL CODE ANN. § 12.33(a).

C. The Trial Judge Did Not Abuse Her Discretion

Harris pleaded true to the allegation that he violated a condition of his

community supervision pursuant to an open plea agreement with the State. During

the hearing on his punishment, Harris presented evidence that his possession of a

firearm was an isolated event and reasonably explained—it belonged to another

individual and was accidentally left in his vehicle. After hearing the evidence, the

trial court assessed his punishment at six years of imprisonment.

Before imposing his sentence, the trial judge asked if there was any reason

Harris’s sentence should not be imposed. Harris’s defense counsel asked if the trial

judge would consider probating his sentence and the trial judge stated that she would

not. When the trial judge asked again if there was any reason why Harris’s sentence

2
After the date of Harris’s offense, the legislature amended both § 481.102 and § 481.115 of the Texas
Health and Safety Code two times. We cite to the current version of the statute because the subsequent
amendments do not affect the outcome of this appeal.
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should not be imposed, defense counsel answered, “No.” At that point, Harris

begged for mercy but the trial judge did not change her assessment of Harris’s

punishment.

The record shows that the trial court assessed Harris’s punishment within the

range prescribed for the offense. See HEALTH & SAFETY § 481.115(d); PENAL

§ 12.33(a). The record does not demonstrate that the trial judge’s decision was

arbitrary, unreasonable, or outside the zone of reasonable disagreement.

Accordingly, we conclude the trial judge did not abuse her discretion when she

assessed Harris’s punishment at six years of imprisonment.

Issue one is decided against Harris.

III. Eighth Amendment of the U.S. Constitution and Article I, § 13 of the Texas
Constitution

In issues two and three, Harris argues his punishment is cruel and unusual in

violation of the Eighth Amendment and his punishment is grossly disproportionate

to his offense and inappropriate to the offender in violation of his constitutional

rights under article I, § 13 of the Texas Constitution. He claims that the evidence

adduced during his hearing on punishment does not support the trial court’s

assessment of his punishment at six years of imprisonment. The State responds that

Harris failed to preserve these issues for appellate review.

A. Applicable Law

To preserve error for appellate review, a defendant must make his complaint

to the trial court by a timely request, objection, or motion that states the grounds for
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the ruling sought with sufficient specificity to make the trial court aware of the

complaint. TEX. R. APP. P. 33.1(a)(1)(A). A defendant in a criminal case can forfeit

error, even constitutional error, when he fails to make a timely objection or fails to

request proper relief. See Marin v. State, 851 S.W.2d 275, 279 (Tex. Crim. App.

1993), overruled on other grounds by Cain v. State, 947 S.W.2d 262, 264 (Tex.

Crim. App. 1997); Smith v. State, 721 S.W.2d 844, 855 (Tex. Crim. App. 1986). To

preserve a complaint about an allegedly disproportionate or cruel and unusual

punishment for appeal, a defendant must make his complaint to the trial court by a

timely request, objection, or motion. See TEX. R. APP. P. 33.1(a)(1)(A); Hunter v.

State, No. 05-23-01019-CR, 2024 WL 2024 WL 2972026, at * (Tex. App.—Dallas,

June 13, 2024, no pet. h.).

B. Harris Failed to Preserve His Complaints for Appellate Review

The record shows that Harris’s punishment was assessed at six years of

imprisonment, which we have already concluded was within the statutory range of

punishment for the offense. HEALTH & SAFETY § 481.115(d); PENAL § 12.33(a); see

also Kirk v. State, 949 S.W.2d 769, 772 (Tex. App.—Dallas 1997, pet. ref’d)

(“Punishment assessed within the statutory range is not constitutionally cruel and

unusual.”). The record also shows that Harris did not object to his punishment on

the grounds it violated either the Eighth Amendment of the U.S. Constitution or

article I, § 13 of the Texas Constitution. Nor did he raise his complaints in a motion.

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Accordingly, we conclude that he failed to preserve these arguments for appellate

review.

We decide issues two and three against Harris without regard to their merit.

IV. Modification of the Judgment Adjudicating Guilt

In issue four, Harris argues the judgment adjudicating his guilt incorrectly

refers to the terms of a plea bargain and should be modified to delete that language.

The State agrees. Also, the record shows that Harris pleaded true to the allegation

pursuant to an open plea agreement with the State; Harris did not plead true pursuant

to a plea bargain.

Further, although neither party raises the issue, we observe that the record

reveals an additional error in the judgment—it incorrectly lists the statute for the

offense as Texas Health and Safety Code § 481.115(B). The record shows that

Harris was indicted for and pleaded guilty to possession of a controlled substance,

specifically methamphetamine, in the amount of 4 grams or more but less than

200 grams which is an offense under § 481.155(a) and elevated to a second-degree

felony under subsection (d). See HEALTH & SAFETY § 481.115(a), (d). Further, the

trial court’s judgment adjudicating guilt lists the offense for which Harris was found

guilty as possession of a controlled substance in the amount of 4 grams or more but

less than 200 grams and states that the degree of the offense is a second-degree

felony. We also note that there is no § 481.115(B) in the Texas Health and Safety

Code; only § 481.115(g)(B) and § 481.115(h)(1)(B) contain a “(B).” See id.

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§ 481.115. However, those provisions relate to when certain defenses to prosecution

are available to the defendant. See id. § 481.115(g)(B), (h)(1)(B).

An appellate court has the authority to modify an incorrect judgment to make

the record speak the truth when it has the necessary information to do so. See TEX.

R. APP. P. 43.2(b); French v. State, 830 S.W.2d 607, 609 (Tex. Crim. App. 1992)

(adopting the reasoning in Asberry v. State, 813 S.W.2d 526, 529–30 (Tex. App.—

Dallas 1991, pet. ref’d) (en banc)).

We conclude the trial court’s judgment adjudicating guilt should be modified

as follows:

 “Terms of Plea Bargain (if any): 6 YEARS TDC NO FINE” is
modified to read “Terms of Plea Bargain (if any): N/A.”

 “Statute for Offense: 481.115(B) Health and Safety Code” is
modified to read “Statute for Offense: TEX. HEALTH & SAFETY
CODE ANN. § 481.115(a), (d).”

Issue four is decided in favor of Harris.

V. Conclusion

The trial court did not abuse its discretion when it assessed Harris’s

punishment at six years of imprisonment. Harris failed to preserve for appellate

review his issues complaining that his punishment violates the Eighth Amendment

of the U.S. Constitution or article I, § 13 of the Texas Constitution. The trial court’s

judgment contains errors, so we modify the judgment accordingly.

We affirm the trial court’s judgment adjudicating guilt as modified.

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The trial court is directed to prepare a corrected judgment that reflects the

modifications made in this Court’s opinion and judgment in this case. See Shumate

v State, 649 S.W.3d 240, 244–45 (Tex. App.—Dallas 2021, no pet.).

/Emily A. Miskel/
EMILY A. MISKEL
JUSTICE
Do Not Publish
TEX. R. APP. P. 47

231154F.U05

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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT

MONTAY HARRIS, Appellant On Appeal from the 204th Judicial
District Court, Dallas County, Texas
No. 05-23-01154-CR V. Trial Court Cause No. F19-55587-Q.
Opinion delivered by Justice Miskel.
THE STATE OF TEXAS, Appellee Justices Smith and Breedlove
participating.

Based on the Court’s opinion of this date, the trial court’s judgment
adjudicating guilt is MODIFIED as follows:

 “Terms of Plea Bargain (if any): 6 YEARS TDC NO FINE” is
modified to read “Terms of Plea Bargain (if any): N/A.”

 “Statute for Offense: 481.115(B) Health and Safety Code” is
modified to read “Statute for Offense: TEX. HEALTH & SAFETY
CODE ANN. § 481.115(a), (d).”

As REFORMED, the judgment adjudicating guilt is AFFIRMED.

The trial court is DIRECTED to prepare a corrected judgment adjudicating
guilt that reflects the modifications made in this Court’s opinion and judgment in
this case.

Judgment entered July 8, 2024

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