Luke H. Driggers III A/K/A Luke Driggers v. State ( 2014 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-13-00123-CR
NO. 02-13-00124-CR
NO. 02-13-00125-CR
LUKE H. DRIGGERS III A/K/A LUKE APPELLANT
DRIGGERS
V.
THE STATE OF TEXAS STATE
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FROM CRIMINAL DISTRICT COURT NO. 2 OF TARRANT COUNTY
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MEMORANDUM OPINION 1
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The trial court convicted Appellant Luke H. Driggers III a/k/a Luke Driggers
of two counts of aggravated robbery by threat of an elderly or disabled person
and one count of burglary of a habitation, each alleged in a separate cause, on
his open plea of guilty to the court. Appellant requested and received a
1
See Tex. R. App. P. 47.4.
presentence investigation. The trial judge held a full punishment hearing, and
the learned, conscientious trial judge complied with the legislative mandate by
announcing the sentence he intended to impose in each case and inquiring
whether there was any legal reason sentence should not be pronounced. 2
Appellant responded that there was none.
On appeal, Appellant argues in his sole issue in each of these three cases
that the trial court abused its discretion and sentenced him to cruel and unusual
punishment by sentencing him to fourteen years on the aggravated robbery
convictions and ten years on the burglary conviction because Appellant is forty-
eight years old and will be sixty-three years old when the fourteen-year sentence
is discharged. Appellant concedes that he failed to preserve this issue for appeal
and asks this court to consider the issue in the interest of justice. He argues that
his request is analogous to asking us to consider unassigned error in the interest
of justice.
Appellant was given the opportunity to raise this issue and to present his
argument to the trial court. He did not do so and consequently did not preserve
this issue for appeal. 3 Nor may we consider the issue as unassigned error in the
2
See Tex. Code Crim. Proc. Ann. art. 42.07 (West 2006).
3
See Tex. R. App. P. 33.1(a); Landers v. State, 402 S.W.3d 252, 254 (Tex.
Crim. App. 2013); Pena v. State, 353 S.W.3d 797, 807 (Tex. Crim. App. 2011).
2
interest of justice. 4 We do note, however, that the maximum confinement for
burglary of a habitation as alleged in the indictment is twenty years. 5 The
maximum confinement for aggravated robbery by threat of an elderly or disabled
person as alleged in the remaining two indictments is life imprisonment. 6 The
sentences imposed are well within the range established by the legislature.
We overrule Appellant’s sole issue in each of the three cases and affirm
the trial court’s judgments.
/s/ Lee Ann Dauphinot
LEE ANN DAUPHINOT
JUSTICE
PANEL: DAUPHINOT, WALKER, and MCCOY, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: June 12, 2014
4
See Sanchez v. State, 209 S.W.3d 117, 121 (Tex. Crim. App. 2006)
(“[E]rrors that are subject to procedural default may not be remedied by the
appellate court as unassigned error unless the error was in fact preserved in the
trial court.”).
5
See Tex. Penal Code Ann. §§ 12.33(a), 30.02(a), (c)(2) (West 2011).
6
See id. §§ 12.32, 29.03(a)(3), (b).
3