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State v. Horton

Court of Criminal Appeals of Tennessee, Nashville

December 20, 2019

STATE OF TENNESSEE
v.
HOWARD HOSE HORTON III

          Assigned on Briefs November 14, 2019

          Appeal from the Criminal Court for Davidson County No. 2016-D-2294, 2018-B-1305 Cheryl A. Blackburn, Judge.

         The defendant, Howard Hose Horton III, entered open pleas to one count of aggravated assault and one count of felony vandalism, and the trial court sentenced the defendant to an effective sentence of eight years' incarceration in the Tennessee Department of Correction. On appeal, the defendant argues the sentence imposed by the trial court was excessive. After reviewing the record and considering the applicable law, we affirm the judgments of the trial court.

         Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed

          Kevin Kelly, Nashville, Tennessee, for the appellant, Howard Hose Horton III.

          Herbert H. Slatery III, Attorney General and Reporter; Renee W. Turner, Senior Assistant Attorney General; Glenn Funk, District Attorney General; and Doug Thurman, Assistant District Attorney General, for the appellee, State of Tennessee.

          J. Ross Dyer, J., delivered the opinion of the court, in which Norma McGee Ogle and Alan E. Glenn, JJ., joined.

          OPINION

          J. ROSS DYER, JUDGE.

         Facts and Procedural History

         The defendant was charged with aggravated assault, felon in possession of a handgun, and domestic assault. The defendant subsequently agreed to plead guilty to aggravated assault with sentencing to be determined by the trial court.[1] Prior to the defendant's sentencing hearing, he was arrested for felony vandalism. The defendant again agreed to a plea deal with sentencing to be determined by the trial court. As part of the second plea, the State and the defendant agreed the defendant's sentence for vandalism would run consecutively to the aggravated assault sentence. A sentencing hearing was held on January 11, 2019.

         During the sentencing hearing, the State introduced the presentence report as well as the testimony of Lekeeshah Horton. Ms. Horton, the defendant's wife, testified she was the victim in the vandalism case. The defendant damaged three of Ms. Horton's vehicles as he was leaving their house after arguing with Ms. Horton's teenage daughter. The defendant shattered the windows and windshields of the vehicles and also damaged one vehicle's hood. Ms. Horton testified she was able to get two of the vehicles repaired. However, one vehicle's windows were still broken. The receipt for the repairs totaled $819.38.

         Ms. Horton testified this was not the first time she had been to court on a case involving the defendant. Three domestic assault charges were previously filed against the defendant with Ms. Horton listed as the victim. However, two of those charges were dismissed because Ms. Horton failed to testify against her husband. Ms. Horton agreed the defendant had a drug problem and had not maintained any long-term employment.

         On cross-examination, Ms. Horton agreed the defendant was "a good person" and "a good dad" when he was not using drugs. She believed the defendant began using drugs because of stress and stated he was "[h]anging around the wrong crowd of people." Ms. Horton also testified the defendant's parents died when he was a child. Ms. Horton agreed the defendant needed help for his drug problem and stated he had never attended a drug treatment program. Although the defendant apologized to Ms. Horton once he was in jail, Ms. Horton did not know if the apology was sincere because the defendant often "apologize[d] to shut [her] up."

         The defendant testified on his own behalf, stating he began using Percocet in 2003 due to stress. The petitioner also testified he suffered from Post-Traumatic Stress Disorder stemming from his traumatic childhood. He agreed he had a long criminal history but explained he often pled guilty to charges without knowing how they would later affect his life. He also agreed he was not successful on probation because he was not "keeping [himself] busy." Although he went to therapy as a child, the defendant had not taken anger management classes or attended a drug treatment program. ...


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