Joshua Cyrus Wynn v. the State of Texas

IN THE
TENTH COURT OF APPEALS

No. 10-23-00192-CR

JOSHUA CYRUS WYNN,
Appellant
v.

THE STATE OF TEXAS,
Appellee

From the 272nd District Court
Brazos County, Texas
Trial Court No. 20-04066-CRF-272

MEMORANDUM OPINION

Joshua Cyrus Wynn pled guilty to and was convicted of one count of aggravated

assault of a public servant, one count of aggravated assault with a deadly weapon, and

two counts of deadly conduct-discharge firearm. He also pled true to the allegation in

counts one and two that he used or exhibited a deadly weapon during the commission of

those offenses. The court sentenced Wynn to 25, 20, 10, and 10 years in prison,

respectively. We affirm the trial court’s judgment.
BACKGROUND

In 2020, Wynn went to a park and encountered a man on a park trail. Wynn asked

the man, “Are you ready? Are you ready?” before pulling out a gun and shooting the

man in the stomach. Wynn walked into the nearby woods but returned and shot the man

again; this time, in the shoulder. Wynn ran to a family at a nearby picnic shelter before

running into the woods.

The chief deputy with the Brazos County Precinct 3 Constable’s Office responded

to the park for the shots-fired call and positioned himself at the south side of the

perimeter which had been set up around the park. While there, he saw Wynn standing

nearby but was unaware that Wynn was the person who had shot the man.

The deputy approached in his patrol vehicle to warn Wynn that officers were in

the area in response to an active shooter situation. Wynn initially responded pleasantly

but contorted his face and started muttering when warned that he needed to leave the

area. Due to Wynn’s odd behavior, the deputy turned the vehicle around to follow Wynn

as he jogged away. Wynn waved to two College Station officers as he continued to jog

away, but after passing the second officer, Wynn began running faster before stopping,

turning around, and firing at the deputy in his patrol vehicle.

After Wynn stopped firing, the deputy exited his vehicle and ordered Wynn to get

on the ground. Wynn was taken into custody by other officers. Later, officers located

two bullet strikes in the apartment building across the street from a childcare center and

behind where the deputy’s patrol vehicle had been when Wynn shot at him. Officers also

located a spent bullet in the roadway where the patrol vehicle had been, two bullet holes

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in the patrol vehicle along with a hole in the deputy’s hat in the seat of the vehicle, and a

bullet hole in another vehicle belonging to an uninvolved citizen. Officers also recovered

a handgun from Wynn which he had bought five months before the shootings.

DEFERRED ADJUDICATION

In his first issue, Wynn contends the trial court abused its discretion in

adjudicating Wynn guilty rather than deferring an adjudication of guilt.

The Texas Code of Criminal Procedure provides that:

if in the judge’s opinion the best interest of society and the defendant will
be served, the judge may, after receiving a plea of guilty or nolo contendere,
hearing the evidence, and finding that it substantiates the defendant’s guilt,
defer further proceedings without entering an adjudication of guilt and
place the defendant on deferred adjudication community supervision.

TEX. CODE CRIM. PROC. art. 42A.101(a) (emphasis added). The power to defer

adjudication rests solely within the discretion of the trial court. Reed v. State, 644 S.W.2d

479, 483 (Tex. Crim. App. 1983). The purpose of the statute is to allow the trial court the

flexibility to defer adjudication for deserving defendants if, in its opinion, the best interest

of society and the defendant will be served. Id. No defendant, absent a plea bargain, can

be assured of receiving it. Id. at 484. Should the trial court defer the proceedings without

an adjudication of guilt, the court must then, necessarily, “place the defendant on

deferred adjudication community supervision.” TEX. CODE CRIM. PROC. art. 42A.101(a).

The granting of community supervision is a privilege, not a right. Dansby v. State,

448 S.W.3d 441, 447 (Tex. Crim. App. 2014). As such, the trial court's decision whether to

grant community supervision is "wholly discretionary and nonreviewable." Speth v. State,

6 S.W.3d 530, 533 (Tex. Crim. App. 1999); McElyea v. State, No. 10-19-00296-CR, 2020 Tex.

Wynn v. State Page 3
App. LEXIS 5541, *1-2 (Tex. App.—Waco July 20, 2020, no pet.) (not designated for

publication) (overruling appellant's claim that the trial court abused its discretion in

denying his request for community supervision as "nonreviewable").

Wynn likens the trial court’s decision not to defer an adjudication of guilt to the

trial court’s punishment assessment in Jackson v. State, where, under the limited facts of

the case and over a timely objection, the trial court’s punishment decision “in which there

was no evidence of the offense, no information about the defendant, no punishment

evidence, no plea bargain; in short, nothing at all upon which the punishment decision

could have been based,” was held to be an abuse of discretion. Jackson v. State, 680 S.W.2d

809, 814 (Tex. Crim. App. 1984). Jackson and this case are not the same. Most importantly,

Jackson was not a review of a trial court’s decision whether to defer the defendant’s

adjudication of guilt.

Accordingly, Wynn’s first issue is overruled.

SENTENCING

In Wynn’s second, third, and fourth issues, Wynn complains that the trial court

abused its discretion in its sentencing on each count. Generally, as long as a sentence is

within the proper range of punishment, the sentence will not be disturbed on appeal.

Jackson v. State, 680 S.W.2d 809, 814 (Tex. Crim. App. 1984). Wynn does not contend that

the sentences for each count were not within the proper range of punishment. Rather, he

contends that the trial court abused its discretion in the sentences imposed when

compared to the “standards” set out by the Legislature in article 37.07 of the Texas Code

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of Criminal Procedure. 1 TEX. CODE CRIM. PROC. art. 37.07, sec. 3(a)(1). Thus, it appears

that Wynn is attempting to present a disproportionate-sentence claim in these issues.

A sentence may violate the Eighth Amendment to the United States Constitution

if the sentence is grossly disproportionate to the offense or to sentences in other similar

offenses even if it falls within the statutory punishment range. See Solem v. Helm, 463 U.S.

277, 289-90, 103 S. Ct. 3001, 77 L. Ed. 2d 637 (1983). A disproportionate-sentence claim,

however, must be preserved for appellate review either by objecting when the sentence

is imposed or by raising the claim in a timely-filed motion for new trial. TEX. R. APP. P.

33.1(a)(1); Castaneda v. State, 135 S.W.3d 719, 723 (Tex. Crim. App. 2003) (cruel and

unusual punishment claims may be waived); Noland v. State, 264 S.W.3d 144, 151 (Tex.

App.—Houston [1st Dist.] 2007, pet. ref'd) (to preserve gross disproportionate claim,

defendant must present timely and specific request, objection, or motion). Wynn did not

preserve a disproportionate-sentence claim because he did not raise it at the time the

sentence was imposed or in a motion for new trial.

Accordingly, Wynn’s second, third, and fourth issues are overruled.

CONCLUSION

Having overruled each issue on appeal, we affirm the trial court’s judgment.

TOM GRAY
Chief Justice

1
Section 3(a)(1) does not impose standards that the trial court must follow. Instead, it permits the trial
court to consider any matter relevant to sentencing including, but not limited to, evidence such as a prior
criminal record, the defendant’s reputation and character, the circumstances of the offense, and evidence
of extraneous offenses or bad acts. Id. To the extent Wynn’s “issue” is limited to an argument that the trial
court abused its discretion based upon evaluating and weighing these factors, we disagree. Given the
seriousness of the conduct, the sentences were not an abuse of discretion.
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Before Chief Justice Gray,
Justice Johnson, and
Justice Smith
Affirmed
Opinion delivered and filed November 27, 2024
Do not publish
[CRPM]

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