Charles Bacy, Jr. v. State ( 1998 )

Charles Bacy, Jr. v. State

  IN THE

TENTH COURT OF APPEALS

No. 10-97-362-CR

No. 10-97-363-CR

No. 10-97-364-CR

     CHARLES BACY, JR.,

                                                                              Appellant

     v.

     THE STATE OF TEXAS,

                                                                              Appellee

From the 371st District Court

Tarrant County, Texas

Trial Court Nos. 0627740A, 0632747A & 0632751A

O P I N I O N

      Cause No. 10-97-362-CR (Trial Court No. 0627740A) is an appeal by Appellant Bacy of his conviction for engaging in organized crime–burglary of a habitation, for which he was sentenced to 50 years in the Texas Department of Criminal Justice—Institutional Division (TDCJ-ID).

      Cause No. 10-97-363-CR (Trial Court No. 0632747A) is an appeal of his conviction for aggravated kidnaping, for which he was sentenced to 50 years in TDCJ-ID.

      Cause No. 10-97-364-CR (Trial Court No. 0632751A) is an appeal by Appellant Bacy of his conviction for aggravated robbery, for which he was sentenced to 60 years in TDCJ-ID.

      Appellant pled guilty in all three cases on August 26, 1997. It was an open plea. There was no plea bargain. The trial court ordered a pre-trial investigation and set the punishment hearing for October 3, 1997, at which time the trial court sentenced Appellant to 50 years in the burglary case; 50 years in the aggravated kidnaping case; and 60 years in the aggravated robbery case.

      There is one reporter's record and the briefs are identical in each case.

      Appellant appeals in each case on one identical point of error: "The trial court's punishment of Appellant constituted cruel or unusual punishment in violation of the Texas Constitution."

      The range of punishment in each case is the same: Not less than 5 years or more than 99 years or life in TDCJ-ID and a fine not to exceed $10,000.

      At the punishment hearing there was evidence that Appellant grew up with very little adult supervision. His mother was deceased, his father was a drug addict, and his sister, five years older than Appellant, was his primary caretaker. Appellant, who is 18 years old, has a child born while he has been incarcerated. Appellant has completed his GED and claims he has found the Lord since his incarceration. He testified that he is sorry for his misdeeds and that his stay in custody has given him a whole new look at life and shown him that this is not where he wants to be for the rest of his life.

      Appellant's sole complaint is that the punishment assessed is cruel and unusual in violation of the Texas Constitution. If the punishment assessed is within the range provided by statute, it is not cruel or unusual under the Texas Constitution. Lambright v. State, 318 S.W.2d 653 (Tex. Crim. Ap. 1958); McNew v. State, 608 S.W.2d 166, 174 (Tex. Crim. App. 1978); Puga v. State, 916 S.W.2d 547, 550 (Tex. App.—San Antonio 1996, no pet.); Kirk v. State, 949 S.W.2d 769, 772 (Tex. App.—Dallas 1997, no pet.).

      Appellant's punishment in all three cases was within the range of punishment proscribed by the Legislature for each offense. Thus no error is shown.

      Appellant's point is overruled in each case. The judgment in each case is affirmed.

                                                                               FRANK G. McDONALD

                                                                               Chief Justice (Retired)

Before Chief Justice Davis,

      Justice Vance and

      Chief Justice McDonald (Retired)

Affirmed

Opinion delivered and filed September 9, 1998

Do not publish