Julin Robertson v. State , 2013 Tex. App. LEXIS 2147 ( 2013 )

Affirmed and Opinion filed March 5, 2013.
In The
Fourteenth Court of Appeals
NOS. 14-12-00492-CR
14-12-00493-CR
JULIN ROBERTSON, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 337th District Court
Harris County, Texas
Trial Court Cause Nos. 1311781 & 1312873
OPINION
Appellant Julin Robertson appeals his sentences for two counts of
aggravated robbery on the ground that the sentences are grossly disproportionate to
the crimes in violation of the Eighth Amendment to the United States Constitution.
We affirm.
Background
On June 30, 2011, Kristian Lavergne stole a car. He picked up appellant,
and they drove to a convenience store. Appellant exited the vehicle, approached a
woman in her truck, and asked her for change. Appellant then leaned into the
woman’s truck and attempted to take her purse. As the woman held onto her
purse, appellant punched her arm. The woman began screaming, and her husband
ran out of the convenience store towards her. Appellant ran away and jumped into
the car with Lavergne. Laverne drove away after pointing a gun at the woman’s
husband.
On the same day, appellant and Lavergne drove up to another convenience
store in the same car. Appellant again exited the vehicle, approached a woman
from behind, and in the course of grabbing her purse, knocked her to the ground
and injured her knee. Appellant then got into the car with Lavergne. The woman
stepped in front of the car, and Lavergne pointed a gun at her before driving away.
Appellant and Lavergne stole two other purses that day and unsuccessfully
attempted to steal another woman’s purse. They were indicted for the armed
robberies and pleaded guilty to two counts of aggravated robbery. The trial court
assessed appellant’s punishment at 18 years’ confinement on both counts, to run
concurrently.
Discussion
In his sole issue, appellant argues his 18-year sentences were grossly
disproportionate to the crimes of aggravated robbery for which he was convicted,
because appellant did not use a weapon, as opposed to his cohort Lavergne, who
received only a 10-year sentence.1
1
A person commits aggravated robbery if he commits robbery while using or exhibiting a
2
The Eighth Amendment prohibits cruel and unusual punishment, which
includes “extreme sentences that are grossly disproportionate to the crime.” See
Graham v. Florida, 130 S. Ct. 2011, 2021 (2010) (internal quotation marks
omitted). Appellant was required to make a timely objection to the trial court to
preserve his complaint that his life sentence without parole is unconstitutionally
excessive. See Tex. R. App. P. 33.1(a) (regarding timely objection, request, or
motion to preserve error); Battle v. State, 348 S.W.3d 29, 30 (Tex. App.—Houston
[14th Dist.] 2011, no pet.). Appellant admits he did not do so, but argues his
sentence resulted from a “fundamental error” and he suffered egregious harm.
Appellant cites only Rule of Evidence 103(d), which provides that notice may be
taken of “fundamental errors affecting substantial rights although they were not
brought to the attention of the court,” and Almanza v. State, 686 S.W.2d 157, 171
(Tex. Crim. App. 1985), which states that reversal of unpreserved fundamental
error is available only “if the error is so egregious and created such harm that [the
defendant] has not had a fair and impartial trial.” Without addressing whether and
under what circumstances a violation of the Eighth Amendment could constitute
fundamental error that requires no trial objection to be preserved for appeal, we
conclude that no such error occurred in this case.2 See Young v. State, No. 01-09-
00790-CR, 2012 WL 668927, at *5 (Tex. App.—Houston [1st Dist.] Mar. 1, 2012,
pet. ref’d).
Appellant was convicted of two counts of a first degree felony and sentenced
to the lower end of the statutory range of punishment for such offenses. See Tex.
Penal Code § 12.32(a) (providing first degree punishment shall be imprisonment
“for life or for any term not more than 99 years or less than 5 years”); id. §
deadly weapon. Tex. Penal Code § 29.03(a)(2).
2
We find the suggestion of fundamental error to be inadequately briefed, see Rule of
Appellate Procedure 38.1(i).
3
29.03(b) (providing aggravated robbery is a first degree felony). Subject only to “a
very limited, exceedingly rare” exception for grossly disproportional punishments,
a punishment assessed within the statutory limits is “unassailable on appeal.” Ex
parte Chavez, 213 S.W.3d 320, 323-24 (Tex. Crim. App. 2006); see also Lockyer
v. Andrade, 538 U.S. 63, 73 (2003) (noting with regard to noncapital crimes, the
gross disproportionality principle applies only in the “exceedingly rare” and
“extreme” case). Legislatures have the broad authority to define their own crimes
and set their own punishments. Solem v. Helm, 463 U.S. 277, 290 (1983). As a
reviewing court, we must afford considerable deference to these sentencing
schemes. Id. Therefore, in assessing the proportionality for a term-of-years
sentence, our role is to judge not the wisdom of appellant’s sentence, but whether
the sentence comports with constitutional standards. See id.
We first determine whether “an objective comparison of the gravity of the
offense against the severity of the sentence reveals the sentence to be extreme.”
Baldridge v. State, 77 S.W.3d 890, 893 (Tex. App.—Houston [14th Dist.] 2002,
pet. ref’d) (citing Harmelin v. Michigan, 501 U.S. 957, 1005 (1991) (Kennedy, J.,
plurality op.)). Only if we are able to infer that the sentence is grossly
disproportionate will we then compare the challenged sentence against the
sentences of other offenders in the same jurisdiction and the sentences imposed for
the same crime in other jurisdictions. Id.; see also Solem, 463 U.S. at 292.
Appellant argues that his sentence was grossly disproportionate because
Lavergne received only a 10-year sentence, even though Lavergne, not appellant,
exhibited a weapon during commission of the offenses. We do not agree that this
is the “exceedingly rare” case in which appellant’s sentences would give rise to an
inference of gross disproportionality. Appellant and Lavergne engaged in an all-
day purse snatching spree. Appellant was aware that Lavergne, the getaway driver,
4
was armed during the commission of the offenses. Appellant assaulted one of the
complainants, who was over 65, by shoving her to the ground and injuring her
knee while stealing her purse, which constitutes aggravated robbery under the
Penal Code. See Tex. Penal Code § 29.03(a)(3)(A). Appellant also assaulted
another complainant by punching her arm. Appellant alone exited the vehicle for
each of these physical encounters. Because our comparison of appellant’s crimes
to his sentences does not give rise to an inference of gross disproportionality, we
do not compare appellant’s sentences with the sentences of other offenders in the
same jurisdiction or with the sentences imposed for the same crime in other
jurisdictions.3 See Baldridge, 77 S.W.3d at 893. We conclude appellant’s
sentences are not in violation of federal constitutional standards.
Appellant’s sole issue is overruled. The judgment of the trial court is
affirmed.
/s/ Martha Hill Jamison
Justice
Panel consists of Justices Christopher, Jamison, and McCally.
Publish — TEX. R. APP. P. 47.2(b).
3
Moreover, appellant admits his sentence “is average” when compared to “other
aggravated robbery sentences” in other counties.
5