Eric Lee Harrington v. State ( 2014 )

COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
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ERIC LEE HARRINGTON, No. 08-13-00229-CR
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Appellant, Appeal from the
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v. 372nd District Court
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THE STATE OF TEXAS, of Tarrant County, Texas
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Appellee. (TC# 1290357D)
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OPINION
Eric Lee Harrington appeals the trial court’s judgment convicting him of aggravated
robbery with a deadly weapon and sentencing him to 20 years’ imprisonment.1 In two issues,
Harrington challenges the propriety and severity of his sentence, asserting it is unjust and grossly
disproportionate to his crime.2 We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
This case is one of six stemming from two separate incidents involving armed robberies.
In one of the incidents, Harrington fired a weapon at two bystanders, striking one three times. In
the other incident—the one out of which this particular case arose—Harrington brandished a
1
Harrington is also appealing the trial court’s judgments in five companion cases. Those cases have been assigned
appellate cause nos. 08-13-00224-CR, 08-13-00225-CR, 08-13-00226-CR, 08-13-00227-CR, and 08-13-00228-CR.
2
Harrington raises these same issues in the five companion cases identified in footnote number one.
weapon but did not fire it. After being indicted for aggravated robbery with a deadly weapon,
Harrington pled guilty without the benefit of a plea bargain. The trial court accepted Harrington’s
guilty plea and admonished him that the full range of punishment would be considered. In
conjunction with Harrington’s request for community supervision, the trial court ordered a
pre-sentence investigation report and reset the case for a sentencing hearing. At the conclusion of
that hearing, the trial court sentenced Harrington to 20 years’ imprisonment.
PRESERVATION OF COMPLAINTS
In his first issue, Harrington claims his sentence, though within the range prescribed by
statute, is unjust and therefore improper. See TEX.PENAL CODE ANN. §§ 29.02(a),
29.03(a)(2)(West 2011)(aggravated robbery is a first degree felony), TEX.PENAL CODE ANN.
§ 12.32 (West 2011)(punishment range for first degree felony is 5 to 99 years or life in prison). In
his second issue, Harrington contends his sentence constitutes cruel and unusual punishment under
both the United States and Texas Constitutions because it is grossly disproportionate to his crime.
The State counters that Harrington failed to preserve both of his complaints for appellate review
because he did not raise them in the trial court. We agree.
To preserve error relating to the propriety and severity of punishment, including that the
sentence imposed constitutes cruel and unusual punishment, a defendant must object to his
sentence in the trial court. See Mercado v. State, 718 S.W.2d 291, 296 (Tex.Crim.App.
1986)(“As a general rule, an appellant may not assert error pertaining to his sentence or
punishment where he failed to object or otherwise raise such error in the trial court.”); Rhoades v.
State, 934 S.W.2d 113, 120 (Tex.Crim.App. 1996)(concluding appellant failed to preserve
challenge to sentence under state constitution’s protection against cruel and unusual punishment
2
because he did not object in trial court); Curry v. State, 910 S.W.2d 490, 497 (Tex.Crim.App.
1995)(concluding appellant failed to preserve challenge to sentence under federal constitution’s
protection against cruel and unusual punishment because he did not object in trial court);
Rodriguez v. State, 917 S.W.2d 90, 92 (Tex.App.--Amarillo 1996, pet. ref’d)(“[N]othing is
preserved for review because appellant failed to raise the severity of his sentence when
punishment was assessed or in a new trial motion.”).
Here, Harrington did not object to the propriety or severity of his twenty-year sentence at
punishment. When asked by the trial court if there was any legal reason why sentence could not
be imposed then and there, Harrington’s trial counsel responded, “No.” Nor does the record
indicate Harrington raised the issue in a post-judgment motion. By failing to object to the
propriety and severity of his sentence in the trial court, Harrington has forfeited appellate review of
his complaints.
Harrington does not address the issue of waiver on appeal. However, in his original
briefing, Harrington depicts his first issue—presumably in the hopes of obtaining appellate
review—as a challenge to the “sufficiency of the evidence for a particular sentence.” But the
severity of a sentence imposed within the statutory range “is not subject to a sufficiency of the
evidence review on appeal.”3 Jarvis v. State, 315 S.W.3d 158, 162 (Tex.App.--Beaumont 2010,
no pet.)[Internal citations omitted]. As noted previously, Harrington’s 20-year sentence is within
the punishment range for a first degree felony.
3
Unlike most trial errors, which are forfeited if not asserted in the trial court, a complaint concerning the imposition of
an illegal sentence, i.e., one outside the applicable range of punishment, may be considered for the first time on appeal.
Mizell v. State, 119 S.W.3d 804, 806 (Tex.Crim.App. 2003). Harrington raises no such complaint on appeal.
3
Harrington’s first and second issues are overruled.4
CONCLUSION
The trial court’s judgment is affirmed.
July 31, 2014
YVONNE T. RODRIGUEZ, Justice
Before McClure, C.J., Rivera, and Rodriguez, JJ.
(Do Not Publish)
4
Given our conclusion that Harrington forfeited appellate review of his complaints, we decline his invitation “to
review Texas law and consider whether it is time for Appellate Courts to review the appropriateness of punishment
sentences.”
4