Henry Gallegos v. State ( 1999 )

No. 04-97-00461-CR

Henry GALLEGOS, Appellant

v. The STATE of Texas, Appellee

From the 218th Judicial District Court, Atascosa County, Texas Trial Court No. 97-01-0008-CRA Honorable Stella Saxon, Judge Presiding

Opinion by: Sarah B. Duncan, Justice

Sitting: Tom Rickhoff, Justice

Sarah B. Duncan, Justice

Karen Angelini, Justice

Delivered and Filed: February 17, 1999

MOTION TO WITHDRAW GRANTED; AFFIRMED

Henry Gallegos pled guilty to a jury to aggravated robbery. After a trial on punishment, the jury found Gallegos guilty and sentenced him to twenty-two years imprisonment. Gallegos appeals.

Gallegos' court-appointed appellate attorney filed a brief in which he raises one arguable point of error, but nonetheless concludes this appeal is frivolous and without merit. The brief meets the requirements of Anders v. California, 386 U.S. 738 (1967), High v. State, 573 S.W.2d 807 (Tex. Crim. App. 1978), and Gainous v. State, 436 S.W.2d 137 (Tex. Crim. App. 1969). Counsel states Gallegos was provided a copy of the brief and motion to withdraw and was further informed of his right to review the record and file his own brief. Gallegos filed a brief that merely reasserted the arguable point raised by counsel.

The only arguable point raised by counsel is that Gallegos' twenty-two year sentence constitutes cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments of the United States Constitution and article I, section 13 of the Texas Constitution. Aggravated robbery is a first degree felony punishable by imprisonment for a term of five to ninety-nine years and a fine of up to $10,000. Tex. Penal Code Ann. §§ 12.32, 29.03 (Vernon 1994). Gallegos' sentence was therefore within the range permitted by statute. Although we "should grant substantial deference to the broad authority that legislatures necessarily possess in determining the types and limits of punishments for crimes," a sentence within the range permitted by statute may nonetheless run afoul of the Eighth Amendment prohibition against cruel and unusual punishment. Solem v. Helm, 463 U.S. 277, 290 (1983).

In reviewing a disproportionality claim under the federal constitution, the threshold question is whether appellant's sentence "is grossly disproportionate to the crime." Thomas v. State, 916 S.W.2d 578, 583 (Tex. App.--San Antonio 1996, no pet.) (citing McGruder v. Puckett, 954 F.2d 313, 316 (5th Cir.), cert. denied, 506 U.S. 849 (1992)). Punishment is "grossly disproportionate to a crime only when an objective comparison of the gravity of the offense against the severity of the sentence reveals the sentence to be extreme." Diaz-Galvan v. State, 942 S.W.2d 185, 186 (Tex. App.--Houston [1st Dist.] 1997, pet. ref'd) (citing Harmelin v. Michigan, 501 U.S. 957 (1991)).

Gallegos argues the twenty-two year sentence was excessive because nobody was injured in the robbery, he did not receive any of the proceeds, and he had no prior criminal history. Witnesses testified Gallegos was a peaceful, law-abiding man before this event, and Gallegos testified he was talked into the robbery when he was depressed, down on his luck, and drunk. However, the evidence also established that before the robbery Gallegos was a peace officer in the city of Poteet, where the robbery occurred. Knowing there was only one officer on patrol that night, Gallegos made a false report to the Atascosa County dispatch, sending the officer to the other side of town so he and a friend could commit the robbery. The store they robbed was one Gallegos had frequented and the victims knew him well as a peace officer. Gallegos threatened them with a pistol and locked them in a room at the back of the store. The jury imposed a prison sentence of less than one third of the maximum and did not assess a fine. In light of the circumstances of the offense, the sentence imposed by the jury was not extreme. We hold Gallegos' sentence is not grossly disproportionate to his crime and his punishment is not cruel and unusual under the Eighth Amendment.

Gallegos offers no argument or authority for greater protection against cruel and unusual punishment under the Texas Constitution than under the Eighth Amendment. Moreover, "it has long been held that if the punishment assessed is within the range of penalties established by the legislature there is no violation of the state constitutional provisions against cruel and unusual punishment." Thomas, 916 S.W.2d at 584. Gallegos' state constitutional claim therefore fails.

We have reviewed the record and briefs and agree the appeal is frivolous and without merit. We therefore affirm the trial court's judgment and grant the motion to withdraw filed by Gallegos'

counsel. See Nichols v. State, 954 S.W.2d 83, 86 (Tex. App.--San Antonio 1997, no pet.); Bruns, 924 S.W.2d 176. 177 n.1 (Tex. App.--San Antonio 1996, no pet.).

Sarah B. Duncan, Justice

DO NOT PUBLISH

---

Return to
4th Court of Appeals Opinions