Edward Lister v. State ( 2007 )

NUMBER 13-07-224-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

EDWARD LISTER, Appellant,

v.

THE STATE OF TEXAS, Appellee.

On appeal from the 347th District Court

of Nueces County, Texas

MEMORANDUM OPINION

Before Chief Justice Valdez, Justices Garza and Vela Memorandum Opinion by Justice Vela

Appellant, Edward Lister, was indicted for theft of property valued at less than $1,500. ⁽¹⁾ Because the indictment alleged that he had two prior theft convictions, the offense was enhanced to a state-jail felony. ⁽²⁾ The jury found appellant guilty of the offense, and the trial court assessed punishment, enhanced by two prior felony convictions, at ten years' imprisonment. By his sole issue, appellant contends the punishment was disproportionate to the seriousness of the offense, in violation of the Eighth and Fourteenth Amendments to the United States Constitution. We affirm.

I. Facts

On November 11, 2006, Corpus Christi Police Officers Andres Alvarez and Justin Wicks received a dispatch regarding a theft in progress at Oasis Discount Liquor on 10802 Leopard Street. When they entered the store, a clerk pointed toward three men in the back of the store and told the officers the men were stealing merchandise. Inside the store, the officers detained appellant and the two other men. Officer Olga Flores, who had arrived shortly after Alvarez and Wicks, took appellant aside to pat him down for weapons. She saw "big bulges" on both sides of appellant's pants and heard a "clanking of glass" when he walked. She removed seven bottles of liquor from his pants.

Hasmukh Patel, the store's owner, testified that the liquor which appellant stole from him was worth "at least $600." He further testified that appellant never offered to pay him for the liquor.

A security camera inside the store recorded the theft on videotape, and the State played the videotape for the jury. The videotape showed appellant and another man stuffing bottles of liquor down their pants. The video also showed Officer Flores removing seven bottles of liquor from appellant's pants.

The defense rested without calling any witnesses.

II. Punishment Phase

The enhancement allegations alleged that (1) on October 30, 1997, appellant was convicted of unauthorized use of a motor vehicle, and (2) on May 3, 2002, he was convicted of assault on a public servant. The indictment further alleged that the second previous conviction was for an offense that occurred after the first previous conviction became final. After he pleaded "True" to both enhancement allegations, the trial court admitted State's Exhibits 2, 3, and 4 into evidence. Exhibit 2 is a cover sheet, listing in detail all of the prior convictions that are contained in Exhibits 3 and 4. Exhibit 3 contains copies of appellant's misdemeanor judgments, and Exhibit 4 contains copies of his felony judgments.

The State called the store's owner, Hasmukh Patel, to testify at the punishment phase. When the prosecutor asked Patel how appellant's theft of the liquor affected his business, he replied:

It affects a lot because I am not big businessman. I am just trying to make good life for me and my kids. It is big loss because I am working on low percent margin. It takes lot for me to cover that up also it has happened a lot and only few times we catch somebody or we seen somebody stealing. So it affects a lot because people get used to doing that on the place.

When the prosecutor asked him, "[Y]ou testified earlier today that it was about $600 worth of liquor. Would that be a big loss to your store?", he said, "Yes, sir, because we work only on 15 percent markup on dollar. So we have to make a lot of sale to just recover that 600 dollar."

Patel stated that on another occasion, appellant had "taken some bottles" from his store and had gotten away. At some point, Patel installed a $6,000 security camera to catch persons stealing from his store.

Appellant testified that when he was six years old, he was accidentally hit in his eye with a pipe and that the numerous surgeries to repair the injury caused him "a little bit" of brain damage. On two occasions, he went to the San Antonio State Hospital. He also went to "Vernon's" and to MHMR. In school, he was a special-education student and attended up to the ninth grade. He testified that he had a long juvenile history and that he had been to the Texas Youth Commission. He received social security disability. His work history included mowing lawns and working as a janitor. He denied having any substance-abuse problems. When defense counsel asked him, "Don't you know what you did was wrong?", he answered affirmatively. On cross-examination, the prosecutor questioned appellant about his criminal history as follows:

Q. Do you remember that your probation was revoked in Cause Number 93-CR-1853-E and you were sentenced to prison for four years back in 1994--I'm sorry, 1997.

A. Yeah.

Q. You remember also you are on probation for burglary of a vehicle in Cause Number 93-CR-1967-E. Again you were placed on probation and you only made three years of your probation before it was revoked you got sentenced to prison. You remember that? Is that a yes?

A. Yeah. Yes, sir.

Q. You remember you were on probation in Cause Number 00-CR-1588-A for assault on a public servant, two counts, where you apparently assaulted two police officers. You were placed on probation for that and your probation got revoked in that case too, within two years; is that right?

A. No.

Q. That's not right?

A. I did not actually hit either one of them.

Q. I am not asking you about the facts of the case. I am just asking, weren't you on probation for that and your probation got revoked for that.

A. I don't remember why it was revoked.

* * * * *

Q. In fact, you do agree that all those lists of convictions I showed you and your attorney in State's Exhibit Number 2, those are all your convictions, correct?

A. Yes, sir.

* * * * *

Q. You have been convicted of at least 18 misdemeanors and seven felonies, correct?

A. Yes, sir.

* * * * *

Q. So we call these crimes felonies and misdemeanors. But isn't it true, Mr. Lister, you really left a trail of victims behind you, haven't you? Is that a yes?

A. Yes, sir.

* * * * *

Q. Do you remember the part of the video, Mr. Lister, specifically when you are taking bottles off the shelf, you were looking around before you hid them. You remember looking around? That would indicate to me, wouldn't it, that you at least you knew what you were doing was wrong. Yet you did it anyway, hid the bottles in your clothes, correct?

A. Yes.

After the trial court heard all of the punishment evidence, defense counsel advised the court, "I did not find an issue of competence."

III. Analysis

By his sole issue, appellant contends the punishment was disproportionate to the seriousness of the offense, in violation of the Eighth and Fourteenth Amendments to the United States Constitution. The Eighth Amendment provides that "[E]xcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishment inflicted." U.S. Const. amend. VIII; see Robinson v. California, 370 U.S. 660, 675 (1962). The Eighth Amendment is applicable to punishments imposed by state courts through the Due Process Clause of the Fourteenth Amendment. Robinson, 370 U.S. at 657.

Appellant made no objection to his sentence. Additionally, he did not file any post-trial motions or objections complaining that his sentence was either disproportionate to the seriousness of the offense, or complaining about the disparity, cruelty, unusualness or excessiveness of the sentence.

To preserve error for appellate review, a party must present a timely objection to the trial court, state the specific grounds for the objection, and obtain a ruling. Tex. R. App. P. 33.1(a); Dixon v. State, 2 S.W.3d 263, 265 (Tex. Crim. App. 1998). The failure to specifically object to an alleged disproportionate sentence in the trial court or in a post-trial motion waives any error for our review. Jacoby v. State, 227 S.W.3d 128, 130 (Tex. App.-Houston [1st Dist.] 2006, pet. ref'd); see e.g., Nicholas v. State, 56 S.W.3d 760, 768 (Tex. App.-Houston [14th Dist.] 2001, pet. ref'd) (failure to complain to trial court about consecutive sentencing waived error); Solis v. State, 945 S.W.2d 300, 301 (Tex. App.-Houston [1st Dist.] 1997, pet. ref'd) (holding that a claim of a grossly disproportionate sentence violative of Eighth Amendment was forfeited by failure to object). Here, appellant neither objected to the alleged disproportionality of the sentence in the trial court, nor raised the issue in a post-trial motion; he is raising it for the first time on appeal. His argument, therefore, is not preserved for review. See Tex. R. App. P. 33.1(a); Jacoby, 227 S.W.3d at 130.

Even assuming appellant preserved the complaint, we conclude that his ten-year sentence was within the statutorily prescribed punishment range. After he was convicted of state-jail felony theft, he pleaded "True" to each of the two enhancement allegations. This allowed the trial court to assess punishment in the range applicable to a second-degree felony. ⁽³⁾ The punishment range for a second-degree felony is imprisonment for a term of not more than twenty years or less than two years, and a fine not to exceed $10,000. Tex. Penal Code Ann. § 12.33(a), (b) (Vernon 2003).

Punishment assessed within the statutory limits is generally not cruel and unusual punishment. Harris v. State, 656 S.W.2d 481, 486 (Tex. Crim. App. 1983) (holding that punishment which falls within the limits prescribed by a valid statute is not excessive, cruel or unusual); Samuel v. State, 477 S.W.2d 611, 614 (Tex. Crim. App. 1972); Swinney v. State, 828 S.W.2d 254, 259 (Tex. App.-Houston [1st Dist.] 1992, no pet.).

Appellant asks this Court to apply the Solem proportionate analysis test to his sentence. See Solem v. Helm, 463 U.S. 277, 291 (1983). This Court has recognized that "the viability and mode of application of proportionate analysis . . . has been questioned since the Supreme Court's decision in Harmelin v. Michigan, 501 U.S. 957 (1991)." Trevino v. State, 174 S.W.3d 925, 928 (Tex. App.-Corpus Christi 2005, pet. ref'd) (citing McGruder v. Puckett, 954 F.2d 313, 315-16 (5th Cir. 1992) (discussing the various opinions issued in Harmelin, 501 U.S. at 957, and their impact on the Solem decision)); see Sullivan v. State, 975 S..W.2d 755, 757-58 (Tex. App.-Corpus Christi 1998, no pet.) (discussing the implications of the Harmelin opinion and reviewing the proportionality of appellant's sentence under the Solem and McGruder tests). Assuming, arguendo, the viability of a proportionality review, as we did in Sullivan, we will apply both the Solem and McGruder tests to the facts of this case. ⁽⁴⁾ See Sullivan, 975 S.W.2d at 757-58. In both Solem and McGruder, we look first at the gravity of the offense and the harshness of the penalty. Solem, 463 U.S. at 290; McGruder, 954 F.2d at 316.

1. Gravity of the Offense. The evidence showed that appellant was a major actor in the theft. Officer Flores testified, and the videotape confirmed, that appellant had seven bottles of liquor in his pants. Officer Alvarez testified that one of the three suspects had no liquor. The videotape showed that the other suspect had at least five bottles.

Patel, the store's owner, testified that the liquor stolen by appellant was worth at least $600. He stated that this was a "big loss" because his store only had a fifteen-percent markup on the dollar. He also testified that the store would have to make a lot of sales to recover that $600 loss. He had to install an expensive video camera to deter theft from his store. He testified that appellant had taken merchandise from his store on a prior occasion.

2. Harshness of the Penalty.

Appellant was found guilty of state-jail felony theft, enhanced to a second-degree felony based on prior convictions. The ten-year sentence is ten years shorter than the available twenty-year maximum term permitted for a second-degree felony. In light of the nature of appellant's offense and the punishment range available, we conclude that appellant's ten-year sentence is not grossly disproportionate to his crime. This finding ends our analysis under McGruder. See McGruder, 954 F.2d at 316; see also Sullivan, 975 S.W.2d at 757. Because there is no evidence in the appellate record of the sentences imposed for other crimes in Texas or for the same crime in other jurisdictions, we may not perform a comparative evaluation using the remaining Solem factors. See Solem, 463 U.S. at 292; see also Sullivan, 975 S.W.2d at 757-58. Therefore, we conclude that appellant's sentence is neither grossly disproportionate nor cruel and unusual. We overrule the sole issue for review.

The trial court's judgment is affirmed.

ROSE VELA  

Justice  

  Do not publish.

Tex. R. App. P. 47.2(b).

Memorandum Opinion delivered and

filed this 18th day of October, 2007.

1. See Tex. Penal Code Ann. §§ 31.03(a), (b) (Vernon Supp. 2006).

2. Section 31.03, subsections (e)(4)(D) of the Texas Penal Code provide: "(e) Except as provided by Subsection (f), an offense under this section is: . . . (4) a state jail felony if: . . . (D) the value of the property stolen is less than $1,500 and the defendant has been previously convicted two or more times of any grade of theft; . . . ." Id. § 31.03(e)(4)&(D).

3. Section 12.35(a) of the Texas Penal Code provides: "Except as provided by Subsection c, an individual adjudged guilty of a state jail felony shall be punished by confinement in a state jail for any term of not more than two years or less than 180 days." Tex. Penal Code Ann. § 12.35(a) (Vernon 2003). Section 12.42(a)(2) provides:

If it is shown on the trial of a state jail felony punishable under Section 12.35(a) that the defendant has previously been finally convicted of two felonies, and the second previous felony conviction is for an offense that occurred subsequent to the first previous conviction having become final, on conviction the defendant shall be punished for a second-degree felony.

Id. § 12.42(a)(2) (Vernon Supp. 2006).

4. McGiffin v. State, No. 13-05-561-CR, 2006 WL 2294553 (Tex. App.-Corpus Christi August 10, 2006, no pet.) (mem. op.) (not designated for publication).