John Paul Manuel v. the State of Texas

AFFIRM and Opinion Filed October 3, 2024.

S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-23-00422-CR

JOHN PAUL MANUEL, Appellant
V.
THE STATE OF TEXAS, Appellee

On Appeal from the Criminal District Court No. 3
Dallas County, Texas
Trial Court Cause No. F14-76843-J

MEMORANDUM OPINION
Before Justices Molberg, Breedlove, and Kennedy
Opinion by Justice Kennedy
Appellant John Paul Manuel entered an open plea of guilty to murder. The

trial court accepted his plea, found him guilty, and assessed punishment at forty

years’ confinement. In four issues, appellant asserts the trial court violated his

statutory and common-law rights to allocution, imposed a grossly disproportionate

punishment thereby violating his rights under the Eighth Amendment’s prohibition

of cruel and unusual punishments, and imposed a sentence that violated his rights

under the Texas Penal Code’s direct expression of the objectives to be served. We
affirm the trial court’s judgment. Because all issues are settled in law, we issue this

memorandum opinion. TEX. R. APP. P. 47.4.

FACTUAL AND PROCEDURAL BACKGROUND

Irma Martinez was shot and killed on the evening of December 15, 2014,

while seated in her vehicle waiting for her son at a friend’s house. The firearm used

during the offense belonged to appellant. Appellant and two other individuals,

Terrance Brown and Antoine Tovar, were charged with the capital murder of

Martinez.

Prior to trial, the State requested that the court reduce the offense for which

appellant was charged to the lesser included offense of first-degree felony murder.

The court did so, and appellant entered an open plea of guilty to murder and his

judicial confession and stipulation of evidence was admitted into evidence. In his

judicial confession and stipulation, appellant confessed and stipulated that “on or

about 15th day of December 2014, in Dallas County, Texas [he] did unlawfully then

and there intentionally or knowingly cause the death of IRMA MARTINEZ . . . by

SHOOTING [Martinez] WITH A FIREARM, A DEADLY WEAPON.” The plea

exposed appellant to a punishment range of 5 to 99 years or life imprisonment and a

fine not to exceed $10,000. See TEX. PENAL CODE § 12.32. The trial court found

appellant guilty of murder, assessed punishment at forty years’ imprisonment and a

fine of $500, and certified appellant’s right to appeal.

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EVIDENCE AT PUNISHMENT HEARING

At the punishment hearing, the State called Martinez’s husband to testify

about the impact the murder of Martinez had on her family. Martinez’s husband

testified about Martinez’s role in the family, about how she kept everyone together,

and about how difficult things had been since she was murdered, especially for

Martinez’s 16-year-old son, who was present at the crime scene shortly after the

shooting.

Appellant testified on his own behalf and called various family members to

attest to his good character and to testify about how appellant is easily influenced by

others, that he is a follower and not a leader, and that although he knew better, he

fell in with the wrong crowd. Appellant’s mother, father, and stepmother testified

appellant was angry about his parents divorcing and acted out thereafter.

Appellant’s father testified that he gave appellant multiple chances to make good

decisions, but appellant continued down the wrong path. Appellant’s stepmother

testified they had taken steps to get appellant back in school and that appellant was

on the road back to where he needed to be when the murder occurred. But she also

testified that a few days prior to the murder, she found a clip from a gun in the glove

compartment of their car that belonged to appellant. As a result, on December 13,

2014, appellant’s father gave appellant a choice to either go to church with them or

leave his house. Appellant chose to leave and apparently connected with Brown and

Tovar.

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At the punishment hearing, appellant acknowledged that on December 15,

2014, he, accompanied by Brown and Tovar, traveled to a gas station to purchase

cigarettes and “K2.” After Brown and Tovar made the purchase, they returned to

the car and Brown stated they needed money for gas. Appellant did not have money

but suggested they go to his “homegirl’s” house to get money. When they arrived

at her house, they discovered no one was home. As Brown drove away, Tovar

noticed a woman, later identified as Martinez, sitting in a car. Tovar instructed

Brown to drive toward Martinez’s car. Brown did so, and appellant and Tovar exited

the car. Appellant claimed Tovar had already taken possession of his gun before

they got out of the vehicle. Appellant knew Tovar “was up to something, because

he was plotting.” Appellant claimed he got out of the car because he felt pressured

and enticed to do so. Appellant claimed Tovar was the individual who shot and

killed Martinez.

After the murder, Brown, Tovar, and appellant fled the scene without calling

9-1-1. Rather than try to get away from Brown and Tovar, appellant stayed with

them. They drove to another neighborhood, where they broke the phone they took

from Martinez, before driving to a house where Brown or Tovar apparently

sometimes stayed. Two women were present at the house. One of the women

confided in appellant that Tovar and Brown were attempting to coerce her into

prostitution. Appellant remained with this group throughout the night and the next

day, and it was evident that arrangements for prostitution were being made with the

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use of his phone. Appellant, Brown, and Tovar were apprehended and arrested on

December 16, 2014.

During cross-examination, appellant admitted to lying to detectives about his

involvement in the murder of Martinez. Appellant first told detectives that he did

not know anyone was killed, but later admitted to being present when the murder

occurred.

At the punishment hearing, the State also introduced evidence of appellant’s

criminal activity during the days leading up to the murder of Martinez. On

December 13, 2014, appellant sent a threatening text message to an individual named

“Wan.” On December 14, Tovar and appellant were together in a car when Tovar

used appellant’s gun to shoot multiple times at a “white boy” who they got into an

altercation with at a gas station. In addition, the State introduced several

photographs of appellant brandishing firearms and a social media post stating

appellant works at “Middle FinGeR tO the Law.”

The State also questioned appellant about his criminal history as a juvenile.

In April 2012, appellant was placed on juvenile probation for burglary. The

following month, he tested positive for marijuana and was required to complete a

youth conversion mentoring program and drug intervention program. Appellant was

detained again and ordered to complete an alternative initiative program.

During the pronouncement of appellant’s sentence, the trial judge provided

appellant with an explanation of how she determined his sentence. She explained

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that she took into consideration appellant’s familial support and eventual

cooperation with detectives. She also took into consideration the severity of the

offense, appellant’s persistent lying, his dangerous lifestyle, and his refusal to take

responsibility for his actions and show remorse. Appellant interrupted the trial judge

during her explanation stating, “I mean, I said I was sorry.” The trial judge

responded, “I didn’t ask you to open your mouth, young man . . . In fact, you opening

your mouth hasn’t helped you at all any time.” The trial judge rendered judgment

in accordance with her pronouncement at trial.

DISCUSSION

I. Right to Allocution

In his first and second issues, appellant argues he is entitled to a new

sentencing hearing because the trial court violated his statutory and common-law

rights to allocution. The State responds asserting appellant failed to preserve these

complaints for review.

“Allocution” refers to a trial judge’s asking a criminal defendant to speak in

mitigation of the sentence to be imposed, but it has also “come to denote the accused

person’s speech in mitigation of the sentence, rather than the judge’s address asking

the accused to speak.” Johnson v. State, No. 05-21-00785-CR, 2023 WL 3000572,

at *2 (Tex. App.—Dallas Apr. 19, 2023, no pet) (mem. op., not designated for

publication) (quoting Eisen v. State, 40 S.W.3d 628, 631–32 (Tex. App.—Waco

2001, pet. ref’d)) (quoting A Dictionary of Modern Legal Usage 44–45 (Bryan A.

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Garner ed., 2d ed., Oxford 1995)). The statutory right to allocution requires that the

defendant be asked, before sentence is pronounced, “whether he has anything to say

why the sentence should not be pronounced against him.” TEX. CODE CRIM. PROC.

art. 42.07. Article 42.07 identifies three specific legal reasons why a sentence cannot

be pronounced against a defendant: (1) the defendant received a pardon; (2) he is

incompetent; and (3) the defendant is not the person identified. Id.

“To complain on appeal of the denial of the right of allocution, whether

statutory or one claimed under the common law, controlling precedent requires that

a defendant timely object.” Johnson, 2023 WL 3000572, at *2; see also Hall v.

State, No. 05-18-00442-CR, 2019 WL 3955772, at *1 (Tex. App.—Dallas Aug. 22,

2019, pet. ref’d) (mem. op., not designated for publication). Here, appellant did not

object to the court’s failure to afford him his right of allocation. Although appellant

raised his allocution complaint in a motion for new trial, “an appellant may raise a

sentencing issue in a motion for new trial for the first time only if the appellant did

not have the opportunity to object in the punishment hearing.” Burt v. State, 396

S.W.3d 574, 577 n. 4 (Tex. Crim. App. 2013). Here, appellant had an opportunity

to object in the punishment hearing to any denial of allocution; therefore, we

conclude this issue is not preserved for our review. See Jacinto v. State, No. 05-21-

00211-CR, 2022 WL 1793418, at *3 (Tex. App.—Dallas June 2, 2022, pet. ref’d)

(mem. op., not designated for publication) (concluding although appellant raised

allocution complaint in motion for new trial, he had the opportunity to object that

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trial court had denied right to allocution prior to sentencing and thus failed to

preserve issue for appeal); Loring v. State, No. 05-18-00421-CR, 2019 WL 3282962,

at *5 (Tex. App.—Dallas July 22, 2019, no pet.) (mem. op., not designated for

publication) (concluding complaint that appellant was denied his common law right

to allocution was not preserved for appellate review when first raised in motion

for new trial). Accordingly, we overrule appellant’s first and second issues.

II. Punishment

In his third issue, appellant claims the trial court violated his rights under the

Eighth Amendment by imposing a grossly disproportionate punishment. An

allegation of disproportionate punishment is a valid legal claim. State v. Simpson,

488 S.W.3d 318, 322 (Tex. Crim. App. 2016). The concept of proportionality is

embodied in the Constitution’s ban on cruel and unusual punishment and requires

that punishment be graduated and proportioned to the offense. U.S. CONST. amend

VIII. But this is a narrow principle that does not require strict proportionality

between the crime and the sentence. Harmelin v. Michigan, 501 U.S. 957, 1001

(1991) (Kennedy, J., concurring). Rather, it forbids only extreme sentences that are

“grossly disproportionate” to the crime. Ewing v. California, 538 U.S. 11, 23

(2003) (plurality opinion). While the United States Supreme Court has

acknowledged the lack of clarity in its precedent regarding what factors may indicate

gross disproportionality, it has nevertheless emphasized that a sentence is grossly

disproportionate to the crime only in the exceedingly rare or extreme case. Lockyer

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v. Andrade, 538 U.S. 63, 73 (2003). Subject only to a very limited, exceedingly rare,

and somewhat amorphous Eighth Amendment gross-disparity review, a punishment

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

sentencer’s informed normative judgment, is unassailable on appeal. See Ex parte

Chavez, 213 S.W.3d 320, 323–24 (Tex. Crim. App. 2006).

To determine whether a sentence for a term of years is grossly

disproportionate for a particular defendant’s crime, a court must judge the severity

of the sentence in light of the harm caused or threatened to the victim, the culpability

of the offender, and the offender’s prior adjudicated and unadjudicated

offenses. Graham v. Florida, 560 U.S. 48, 60 (2010). In the rare case in which this

threshold comparison leads to an inference of gross disproportionality, the court

should then compare the defendant’s sentence with the sentences received by other

offenders in the same jurisdiction and with the sentences imposed for the same crime

in other jurisdictions. Id. If this comparative analysis validates an initial judgment

that the sentence is grossly disproportionate, the sentence is cruel and unusual. Id.

Appellant’s forty-year sentence fell well within the statutory range of 5 to 99

years or life. Appellant was convicted of murder, one of the most serious crimes in

the Penal Code. Zorn v. State, 222 S.W.3d 1, 3 (Tex. App.—Tyler 2002, pet. dism’d)

(citing K.L.M. v. State, 881 S.W.2d 80, 85 (Tex. App.—Dallas 1994, no writ)). The

trial judge explained that in reaching her opinion that the proper sentence for

appellant is a sentence of forty years imprisonment she took into consideration the

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enormous amount of support from his family, the fact that he had cooperated with

the police to some extent, his fascination with guns, how he was choosing to live his

life, and that he did not acknowledge or show any remorse for his part of Martinez’s

life being taken. We conclude, in light of the seriousness of the crime involved and

appellant’s role in same, his actions before and after the murder, and the matters the

trial judge considered, which are supported by the record, his forty-year sentence is

not one of those “rare” cases where gross disproportionality can be said to exist.

Accordingly, there is no reason to compare his sentence to sentences imposed on

others. Graham, 560 U.S. at 60. We overrule appellant’s third issue.

In his fourth issue, appellant claims his forty-year sentence violates his rights

under the penal code’s expression of the objectives to be achieved under the code.

Section 1.02 of the penal code states the general purposes of the code “are to

establish a system of prohibitions, penalties, and correctional measures to deal with

conduct that unjustifiably and inexcusable causes or threatens harm to those

individual or public interests for which state protection is appropriate.” PENAL

§ 1.02. To accomplish that end, the code shall be construed to have six objectives,

including insuring public safety through the deterrent influence of penalties,

rehabilitation, and punishment to prevent likely recurrence of criminal behavior. Id.

§ 1.02(1); Arballo v. State, No. 05-19-00616-CR, 2020 WL 2847287, at *1 (Tex.

App.—Dallas June 2, 2020, no pet.) (mem. op., not designated for publication). A

trial court has a great deal of discretion to determine the appropriate punishment in

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any given case. See Jackson v. State, 680 S.W.2d 809, 814 (Tex. Crim. App. 1984).

As with issues involving claims of excessive or disproportionate sentencing, so long

as the sentence is within the proper range of punishment, as it is here, it will not

generally be disturbed on appeal. See Hicks v. State, No. 05-20-00614-CR, 2021

WL 3042672, at *3 (Tex. App.—Dallas July 19, 2021, no pet.) (mem. op., not

designated for publication); Foster v. State, 525 S.W.3d 898, 911 (Tex. App.—

Dallas 2017, pet. ref’d).

Appellant entered a plea of guilty to first degree felony murder, punishable by

a term of imprisonment of 5 to 99 years or life and a fine not to exceed $10,000.

PENAL § 12.32. The trial judge assessed appellant’s punishment at forty years’

imprisonment. As stated supra, the trial judge provided a detailed explanation for

her determination of appellant’s punishment. She considered positive aspects for

appellant, including his familial support and eventual cooperation with detectives,

as well as the negative aspects, including his persistent lying, his dangerous lifestyle,

and lack of remorse. Nothing in the record indicates the trial judge did not consider

all of the objectives of section 1.02. Based on the nature of the offense and the

evidence presented, we cannot conclude appellant’s sentence violated the objectives

of the penal code. We overrule appellant’s fourth issue.

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CONCLUSION

We affirm the trial court’s judgment.

/Nancy Kennedy/
NANCY KENNEDY
DO NOT PUBLISH JUSTICE
TEX. R. APP. P. 47
230422F.U05

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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT

JOHN PAUL MANUEL, Appellant On Appeal from the Criminal District
Court No. 3, Dallas County, Texas
No. 05-23-00422-CR V. Trial Court Cause No. F14-76843-J.
Opinion delivered by Justice
THE STATE OF TEXAS, Appellee Kennedy. Justices Molberg and
Breedlove participating.

Based on the Court’s opinion of this date, the judgment of the trial court is
AFFIRMED.

Judgment entered this 3rd day of October, 2024.

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