Hubert E. Seaton, Jr. v. the State of Texas

NO. 12-21-00016-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

HUBERT E. SEATON, JR., § APPEAL FROM THE 241ST
APPELLANT

V. § JUDICIAL DISTRICT COURT

THE STATE OF TEXAS,
APPELLEE § SMITH COUNTY, TEXAS

MEMORANDUM OPINION
Hubert E. Seaton, Jr., appeals the revocation of his community supervision. He presents
three issues on appeal. We modify and affirm as modified.

BACKGROUND
In 2016, Appellant was charged by indictment with third-degree felony evading arrest
with a motor vehicle. 1 Pursuant to a plea agreement, Appellant pleaded “guilty” to the charge.
The trial court found Appellant “guilty” as charged and sentenced him to imprisonment for ten
years but suspended Appellant’s sentence and placed him on community supervision for ten
years.
In November 2020, the State filed a motion to revoke Appellant’s community supervision
alleging that Appellant violated multiple terms and conditions thereof. The trial court conducted
a hearing on the matter, at which Appellant pleaded “not true” to all of the allegations.
Following the hearing, the trial court found the allegations in the State’s motion to be “true.”
Thereafter, the trial court revoked Appellant’s community supervision and sentenced him to
imprisonment for eight years. This appeal followed.

1
See TEX. PENAL CODE ANN. § 38.04(b)(2)(A) (West 2016).
TIME PAYMENT FEE
In his first issue, Appellant argues that the assessment of the time payment fee is both
facially unconstitutional and premature. The State concedes the time payment fee was
prematurely assessed and joins Appellant’s request that this Court delete the time payment fee.
The trial court’s judgment sets forth that Appellant is obligated to pay court costs in the
amount of $565.50. The bill of costs itemizes the costs imposed, which total $565.00. The bill of
costs also includes a $25.00 “time payment” fee. And there is a notation below the list of
currently owed fees that “[a]n additional time payment fee of $15.00 will be assessed if any part
of a fine, court costs, or restitution is paid on or after the 31st day after the date the judgment
assessing the fine, court costs or restitution is entered.” But see TEX. LOC. GOV’T CODE ANN.
§ 133.103(c), redesignated as TEX. CODE CRIM. PROC. ANN. art. 102.030 (West Supp. 2020)
(treasurer shall deposit ten percent of fees collected under this section in general fund of county
or municipality for purpose of improving efficiency of administration of justice in county or
municipality).
The court of criminal appeals recently held that the pendency of an appeal “stops the
clock” for purposes of the time payment fee. Dulin v. State, 620 S.W.3d 129, 133 (Tex. Crim.
2021). Consequently, the assessment of the time payment fee in Appellant’s case is premature
and should be struck in its entirety, without prejudice to its being assessed later if, more than
thirty days after the issuance of the appellate mandate, the defendant has failed completely to pay
any fine, court costs, or restitution that he owes. Id. 2 We sustain Appellant’s first issue.

HEARSAY
In his second issue, Appellant urges the trial court abused its discretion in admitting
certain hearsay testimony.
Standard of Review and Applicable Law
We review a trial court’s evidentiary rulings for abuse of discretion. Oprean v. State, 201
S.W.3d 724, 726 (Tex. Crim. App. 2006). We must uphold the trial court’s ruling if it is
reasonably supported by the record and is correct under any theory of law applicable to the case.
Willover v. State, 70 S.W.3d 841, 845 (Tex. Crim. App. 2002). We will not reverse unless the

2
Because the fee assessment Appellant challenges in his first issue is premature, we do not consider the
constitutionality of the fee. See TEX. R. APP. P. 47.1.

2
trial court’s ruling falls outside the “zone of reasonable disagreement.” Oprean, 201 S.W.3d at
726.
Hearsay is generally not admissible. See TEX. R. EVID. 802. Once an opponent of hearsay
objects, it becomes the burden of the proponent to establish that an exception makes the hearsay
admissible. Taylor v. State, 268 S.W.3d 571, 578–79 (Tex. Crim. App. 2008). One such
exception is provided in Rule of Evidence 803(6) for business records. Under this exception, “A
record of an act, event, condition, opinion, or diagnosis [is not excluded by the rule against
hearsay, regardless of whether the declarant is available as a witness] if: (A) the record was made
at or near the time by—or from information transmitted by—someone with knowledge; (B) the
record was kept in the course of a regularly conducted business activity; (C) making the record
was a regular practice of that activity; (D) all these conditions are shown by the testimony of the
custodian or another qualified witness . . . ; and (E) the opponent fails to demonstrate that the
source of information or the method or circumstances of preparation indicate a lack of
trustworthiness. TEX. R. EVID. 803(6).
Analysis
At the revocation hearing, the State called probation officer Marcela Flores to testify.
Officer Flores is the custodian of records for the probation department. Prior to Officer Flores’
testimony regarding the content of Appellant’s probation records, Appellant objected. He urged
the State failed to establish the appropriate predicate for the business records exception. His
objection was overruled. However, immediately thereafter, the State questioned Officer Flores
as follows:

Q Okay. Just so we can get it on the record, all of the information contained in each probationer’s
file, how do you guys keep track of that information?
A We have the file where we keep the documentation of office visits, UAs, and we also scan
that information into CSS.
Q And all of the information that’s in those files, is that made by or transmitted by someone who
has knowledge of the information at the time of each thing that was made?
A Yes, ma’am, the supervising officers.
Q And each document, whether it’s a violation report, a UA report, anything like that, anything in
that file, those are made at or near the time of each event that occurred?
A Yes, ma’am.
Q And those are made in the regular course and scope of business of the probation department?
A Yes, ma’am.
Q And are they kept in the regular course and scope of the business of the probation department?
A Yes, ma’am.
Q And are you -- would you be considered a custodian of those records?
A Yes, ma’am.

3
And when Officer Flores was testifying as to the content of those records, the trial court clarified
with Appellant about his objection. Appellant replied, “Judge, I’m not objecting. The predicate
has been laid. [The State] laid the predicate of the business record exception, and since that
predicate has been laid, there’s no objection.” Appellant made no further objections to testimony
from his probation records.
If a defendant’s attorney affirmatively states that there is no objection to the admissibility
of the evidence when it is introduced at trial, the defendant waives the right to complain of its
admission on appeal. See Heidelberg v. State, 36 S.W.3d 668, 672 n.2 (Tex. App.–Houston [14th
Dist.] 2001, no pet.); Holmes v. State, 248 S.W.3d 194, 201 (Tex. Crim. App. 2008). And
because Appellant withdrew his previous objection, it is insufficient to preserve his complaint on
appeal. See Valle v. State, 109 S.W.3d 500, 509 (Tex. Crim. App. 2003) (“In addition, a party
must object each time the inadmissible evidence is offered or obtain a running objection”).
Appellant further argues that Officer Flores’s testimony violates the Confrontation
Clause. However, he did not make this objection in the trial court. A defendant’s Confrontation
Clause complaint is subject to preservation requirements and failure to raise it with the trial court
forfeits that complaint on appeal. Wright v. Quarterman, 470 F.3d 581, 586–87 (5th Cir. 2006)
(noting that Texas law generally requires defendant to make specific Confrontation Clause
objection to preserve such error); Davis v. State, 313 S.W.3d 317, 347 (Tex. Crim. App. 2010)
(holding that Confrontation Clause claims are subject to preservation requirements under Texas
Rule of Appellate Procedure 33.1(a)(1)(A)); Paredes v. State, 129 S.W.3d 530, 535 (Tex. Crim.
App. 2004) (holding that defendant “failed to preserve error on Confrontation Clause grounds”
by failing to assert that objection at trial); Alford v. State, 495 S.W.3d 63, 66 (Tex. App.—
Houston [14th Dist.] 2016, pet. ref’d) (holding that defendant failed to preserve his complaint
that he was denied his right under United States and Texas constitutions to confront and cross-
examine complainant). Because Appellant initially objected based on the business records
exception and not the Confrontation Clause, he failed to preserve this complaint for our review.
See TEX. R. APP. P. 33.1(a).
Appellant’s second issue is overruled.

4
CRUEL AND UNUSUAL PUNISHMENT
In his third issue, Appellant argues that the eight-year sentence imposed by the trial court
amounts to cruel and unusual punishment. However, as Appellant concedes in his brief, he made
no timely objection to the trial court raising the issue of cruel and unusual punishment and has,
therefore, failed to preserve any such error. See Rhoades v. State, 934 S.W.2d 113, 120 (Tex.
Crim. App. 1996) (waiver with regard to rights under the Texas Constitution); Curry v. State,
910 S.W.2d 490, 497 (Tex. Crim. App. 1995) (waiver with regard to rights under the United
States Constitution); see also TEX. R. APP. P. 33.1; Mays v. State, 285 S.W.3d 884, 889 (Tex.
Crim. App. 2009) (“Preservation of error is a systemic requirement that a first-level appellate
court should ordinarily review on its own motion[;] ... it [is] incumbent upon the [c]ourt itself to
take up error preservation as a threshold issue.”). But even despite Appellant’s failure to preserve
error, we conclude that the sentence about which he complains does not constitute cruel and
unusual punishment.
The legislature is vested with the power to define crimes and prescribe penalties. See
Davis v. State, 905 S.W.2d 655, 664 (Tex. App.–Texarkana 1995, pet. ref’d); see also Simmons
v. State, 944 S.W.2d 11, 15 (Tex. App.–Tyler 1996, pet. ref’d). Courts have repeatedly held that
punishment which falls within the limits prescribed by a valid statute is not excessive, cruel, or
unusual. See Harris v. State, 656 S.W.2d 481, 486 (Tex. Crim. App. 1983); Jordan v. State, 495
S.W.2d 949, 952 (Tex. Crim. App. 1973); Davis, 905 S.W.2d at 664. In the case at hand,
Appellant was convicted of a third-degree felony, evading arrest with a motor vehicle, the
punishment range for which is imprisonment for no less than two years and no more than ten
years. See TEX. PENAL CODE ANN. §§ 12.34(a) (West 2019), 38.04(b)(2)(A) (West 2016). Here,
the sentence imposed by the trial court falls within the range set forth by the legislature.
Therefore, the punishment is not prohibited as cruel, unusual, or excessive per se.
Nonetheless, Appellant urges the court to perform the three-part test originally set forth in
Solem v. Helm, 463 U.S. 277, 103 S. Ct. 3001, 77 L. Ed. 2d 637 (1983). Under this test, the
proportionality of a sentence is evaluated by considering (1) the gravity of the offense and the
harshness of the penalty, (2) the sentences imposed on other criminals in the same jurisdiction,
and (3) the sentences imposed for commission of the same crime in other jurisdictions. Solem,
463 U.S. at 292, 103 S. Ct. at 3011. The application of the Solem test has been modified by
Texas courts and the Fifth Circuit Court of Appeals in light of the Supreme Court’s decision in

5
Harmelin v. Michigan, 501 U.S. 957, 111 S. Ct. 2680, 115 L. Ed. 2d 836 (1991) to require a
threshold determination that the sentence is grossly disproportionate to the crime before
addressing the remaining elements. See, e.g., McGruder v. Puckett, 954 F.2d 313, 316 (5th Cir.
1992), cert. denied, 506 U.S. 849, 113 S. Ct. 146, 121 L. Ed. 2d 98 (1992); see also Jackson v.
State, 989 S.W.2d 842, 845–46 (Tex. App.–Texarkana 1999, no pet.).
We first must determine whether Appellant’s sentence is grossly disproportionate. In so
doing, we are guided by the holding in Rummel v. Estelle, 445 U.S. 263, 100 S. Ct. 1133, 63 L.
Ed. 2d 382 (1980). In Rummel, the Supreme Court addressed the proportionality claim of an
appellant who received a mandatory life sentence under a prior version of the Texas habitual
offender statute for a conviction of obtaining $120.75 by false pretenses. See id., 445 U.S. at 266,
100 S. Ct. at 1135. A life sentence was imposed because the appellant also had two prior felony
convictions—one for fraudulent use of a credit card to obtain $80.00 worth of goods or services
and the other for passing a forged check in the amount of $28.36. Id., 445 U.S. at 266, 100 S. Ct.
at 1134–35. After recognizing the legislative prerogative to classify offenses as felonies and,
further, considering the purpose of the habitual offender statute, the court determined that the
appellant’s mandatory life sentence did not constitute cruel and unusual punishment. Id., 445
U.S. at 285, 100 S. Ct. at 1145.
In the case at hand, the offense committed by Appellant—evading arrest with a motor
vehicle—is at least as serious as the combination of offenses committed by the appellant in
Rummel, while Appellant’s eight-year sentence is less severe than the life sentence upheld by
the Supreme Court in Rummel. Thus, it is reasonable to conclude that if the sentence in Rummel
was not unconstitutionally disproportionate, then neither is the sentence assessed against
Appellant. Therefore, since we do not find the threshold test to be satisfied, we need not apply
the remaining elements of the Solem test. Appellant’s third issue is overruled.

DISPOSITION
Having sustained Appellant’s first issue and overruled his second and third issues, we
modify the trial court’s judgment and bill of costs by striking the time payment fee, without
prejudice to it being assessed later, if more than thirty days after the issuance of our mandate,
Appellant fails to completely pay any fine, court costs, or restitution he owes. See TEX. R. APP.
P. 43.2(b). We affirm the judgment as modified.

6
GREG NEELEY
Justice

Opinion delivered October 20, 2021.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.

(DO NOT PUBLISH)

7
COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

JUDGMENT

OCTOBER 20, 2021

NO. 12-21-00016-CR

HUBERT E. SEATON, JR.,
Appellant
V.
THE STATE OF TEXAS,
Appellee

Appeal from the 241st District Court
of Smith County, Texas (Tr.Ct.No. 241-0184-16)

THIS CAUSE came to be heard on the appellate record and the briefs filed
herein, and the same being considered, because it is the opinion of this court that the judgment of
the court below should be modified and as modified, affirmed.
It is therefore ORDERED, ADJUDGED and DECREED that the judgment
of the court below be modified by striking the time payment fee, without prejudice to it being
assessed later, if more than thirty days after the issuance of our mandate, Appellant fails to
completely pay any fine, court costs, or restitution he owes; in all other respects the judgment of
the trial court is affirmed; and that this decision be certified to the court below for observance.
Greg Neeley, Justice.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.