Mitchell Eugene Barnes v. State ( 2009 )

Affirmed and Memorandum Opinion filed May 19, 2009

Affirmed and Memorandum Opinion filed May 19, 2009.

In The

Fourteenth Court of Appeals

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NO. 14-08-00427-CR

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MITCHELL EUGENE BARNES, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 337th District Court

Harris County, Texas

Trial Court Cause No. 1147227

M E M O R A N D U M   O P I N I O N

Appellant Mitchell Eugene Barnes pleaded guilty, without an agreed sentencing recommendation from the State, to the felony offense of burglary of a habitation.  He also pleaded true to an enhancement paragraph that alleged he had a prior felony conviction.  The trial court sentenced appellant to twenty years= confinement.  In a single issue, appellant asserts that trial court erred by assessing a punishment Agrossly disproportionate@ to the crime committed.  We affirm.

I.  Background

Appellant signed the following waiver, stipulation, and judicial confession:

In open court and prior to entering my plea, I waive the right of trial by jury.  I also waive the appearance, confrontation, and cross-examination of witnesses, and my right against self-incrimination.  The charges against me allege that in Harris County, Texas, MITCHELL EUGENE BARNES, hereinafter styled the Defendant, heretofore on or about DECEMBER 26, 2007, did then and there unlawfully, with intent to commit theft, enter a habitation owned by [the Complainant], a person having a greater right to possession of the habitation than the Defendant . . . without the effective consent of the Complainant, namely, without any consent of any kind.

Before the commission of the offense alleged above, on APRIL 23, 2003, in Cause No. 943242 in the 183RD DISTRICT COURT of HARRIS County, Texas, the Defendant was convicted of the felony of POSSESSION OF A FIREARM BY A FELON.

. . .

I understand the above allegations and I confess that they are true and that the acts alleged above were committed on December 26, 2007.

Appellant signed and initialed an admonishments form, which designated the range of punishment for a first degree felony as Aa term of life or any term of not more than 99 years or less than 5 years confinement in the Institutional Division of the Texas Department of Criminal Justice and, in addition, a possible fine not to exceed $10,000.00.@  Appellant also waived the making of a reporter=s record of the proceedings. 

The trial court sentenced appellant to twenty years= confinement in the Texas Department of Criminal Justice, Institutional Division.  No post-trial motions were filed.  This appeal timely ensued.

II.  Analysis

In his only issue, appellant contends that the twenty-year sentence assessed by the trial court violated his freedom from cruel and unusual punishment under the federal and state constitutions.  U.S. Const. amend. VIII; Tex. Const. art. I, ' 13.  We first note that complaints regarding violation of these constitutional rights are waivable.  See Mercado v. State, 718 S.W.2d 291, 296 (Tex. Crim. App. 1986) (en banc) (stating that appellant could not assert error regarding sentencing on appeal without raising that error in the trial court); Nicholas v. State, 56 S.W.3d 760, 768 (Tex. App.CHouston [14th Dist.] 2001, pet. ref=d) (holding that freedom from cruel and unusual punishment under both the Texas and federal constitutions may be waived by failing to object in the trial court).  Here, no reporter=s record from the punishment hearing was made because appellant waived his right to have such a record made.  Thus, our record does not reflect that appellant objected to the sentence as violating his constitutional rights when his sentence was pronounced, nor did he object in a post-trial motion.  Accordingly, appellant has waived this issue by failing to preserve error.

Even if appellant had preserved this complaint for review, however, he still would not prevail.  A sentence assessed by a trial judge is not cruel and unusual under the Texas constitution when, as here, it is within the statutory range.  Baldridge v. State, 77 S.W.3d 890, 893B94 (Tex. App.CHouston [14th Dist.] 2002, pet. ref=d).  Ordinarily, burglary of a habitation is classified as a second-degree felony, punishable by a sentence of two to twenty years= confinement.  See Tex. Penal Code Ann. '' 12.33, 30.02(a), (c) (Vernon 2003).  But a defendant charged with a second‑degree felony, such as burglary of a habitation, who is shown to have been once before convicted of a felony, is subject to the range of punishment for a first‑degree felony.  See id. ' 12.42(b) (Vernon Supp. 2008). As appellant acknowledged when he pleaded guilty, the statutory punishment range for the charged offense, elevated by his prior felony conviction, was imprisonment for life or for any term between five and ninety‑nine years.  See id. ' 12.32(a) (Vernon 2003). The twenty-year sentence imposed by the trial judge was within this range; indeed, it is at the lower-end of the statutorily-authorized range and even within the range authorized for a second-degree felony.  See id. ' 12.33(a).

Appellant=s challenge under the federal constitution also fails because the punishment imposed is not disproportionate to the crime committed. See Baldridge, 77 S.W.3d at 893. A punishment is grossly disproportionate in violation of the federal constitutional protection against cruel and unusual punishment when the sentence is shown to be extreme based on an objective comparison of the gravity of the offense with the severity of the sentence.  Id.  Texas courts have concluded that a lengthy prison sentence for the offense of burglary does not raise an inference of gross disproportionality.  See, e.g., Castaneda v. State, 135 S.W.3d 719, 724B25 (Tex. App.CDallas 2003, no pet.) (concluding that thirty-year sentence for third degree felony offense of burglary of vehicle, enhanced by two prior felony convictions, was not grossly disproportionate under federal constitution);  Sullivan v. State, 975 S.W.2d 755, 757B58 (Tex. App.CCorpus Christi 1998, no pet.) (noting that five-year sentence imposed on first-time offender for burglary of habitation was well-below maximum term of imprisonment permitted and was not grossly disproportionate to offense).  Further, appellant has failed to cite a single case in which an appellate court has concluded that a twenty-year sentence for burglary of a habitation violated an appellant=s Eighth Amendment rights.^[1]

In sum, appellant has not preserved this issue for our review.  Moreover, the punishment assessed by the trial court is within the statutorily-permitted range of punishment.  Finally, he provides no facts, argument, or analysis regarding a comparison of the gravity of his offense with the severity of his sentence, nor has he cited a single case in which a twenty-year sentence for burglary of a habitation has been determined to be grossly disproportionate to the offense.  Under these circumstances, we overrule appellant=s sole issue.

III.  Conclusion

Having overruled appellant=s only issue on appeal, we affirm the trial court=s judgment.

/s/        Eva M. Guzman

Justice

Panel consists of Justices Yates, Guzman, and Sullivan.

Do Not Publish C Tex. R. App. P. 47.2(b).

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^[1]  Instead, appellant asserts that his punishment is cruel and unusual because he Asaved the court the time and expense of a jury trial by freely admitting to his guilt@ and Aspared the victim the time, expense, and embarrassment of having to confront@ him by testifying at trial.  Yet appellant cites no cases where these considerations have factored into an Eighth Amendment analysis.  Instead, courts focus first on whether the sentence imposed is grossly disproportionate to the harm caused by and culpability of the offender.  See, e.g., Culton v. State, 95 S.W.3d 401, 403 (Tex. App.CHouston [1st Dist.] 2002, pet. ref=d); Baldridge, 77 S.W.3d at 893B94.  Then, if we determine that the sentence is grossly disproportionate to the offense, we next consider whether the sentence is comparable to (a) those received for similar crimes in the same jurisdiction and (b) those received for similar crimes in other jurisdictions.  Baldridge, 77 S.W.3d at 893.  Here, appellant provides no analysis or authority whatsoever regarding sentences in this or any other jurisdiction.