Juan David Bernal v. State ( 2014 )

Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-13-00768-CR
Juan David BERNAL,
Appellant
v.
The State of
The STATE of Texas,
Appellee
From the Criminal District Court 3, Tarrant County, Texas
Trial Court No. 1297786D
The Honorable Robb Catalano, Judge Presiding
Opinion by: Catherine Stone, Chief Justice
Sitting: Catherine Stone, Chief Justice
Sandee Bryan Marion, Justice
Marialyn Barnard, Justice
Delivered and Filed: July 9, 2014
AFFIRMED
Juan David Bernal pled guilty to aggravated robbery with a deadly weapon and was
sentenced to 15 years’ imprisonment. On appeal, Bernal contends his sentence constitutes cruel
and unusual punishment. We affirm the trial court’s judgment.
04-13-00768-CR
BACKGROUND
Bernal was charged by indictment with aggravated robbery with a deadly weapon. 1 Bernal
pleaded guilty without the benefit of a plea bargain agreement. At sentencing, mitigating evidence
was proffered by the defense, including evidence that Bernal had no bond violations, attended
required court hearings, maintained employment, and pled guilty to the offense. Evidence also
established that Bernal’s fiancée was approximately eight months pregnant. Ultimately, the trial
judge found Bernal guilty of aggravated robbery with a deadly weapon and sentenced him to 15
years’ imprisonment without assessing a fine.
PRESERVATION OF ERROR
To preserve a complaint that a sentence constitutes cruel and unusual punishment, a
defendant must object at trial or properly present the complaint in a motion for new trial. See
Rhoades v. State, 934 S.W.2d 113, 120 (Tex. Crim. App. 1996); Sample v. State, 405 S.W.3d 295,
303–04 (Tex. App—Fort Worth 2013, pet ref’d); TEX. R. APP. P. 33.1(a). In this case, Bernal
made no objection regarding his punishment at trial and did not timely present his motion for new
trial to the trial court for consideration. See TEX. R. APP. P. 21.6. Therefore, Bernal has waived
his right to appeal on this issue.
CRUEL AND UNUSUAL PUNISHMENT
Even if Bernal had properly preserved this issue for our review, a punishment is generally
not cruel or unusual if it falls within the statutory punishment range for the offense unless the
sentence is grossly disproportionate to the offense. Alvarez v. State, 63 S.W.3d 578, 580 (Tex.
App.—Fort Worth 2001, no pet.). The statutory range for the first-degree felony of aggravated
robbery with a deadly weapon is 5 years to life imprisonment, and up to a $10,000 fine. See TEX.
1
Although the indictment also included an enhancement allegation, the State waived the enhancement as reflected in
the judgment.
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04-13-00768-CR
PENAL CODE ANN. §§ 12.32, 29.03 (West 2011). Bernal received a sentence on the low end of the
statutory range; therefore, his punishment is not excessive.
In determining whether a sentence is grossly disproportionate, the following three criteria
are analyzed: 1) the gravity of the offense and the harshness of the penalty; 2) the sentences
imposed on other criminals in the same jurisdiction; and 3) the sentences imposed for the same
offense in other jurisdictions. See Solem v. Helm, 463 U.S. 277, 292 (1983). “We judge the gravity
of the offense in light of the harm caused or threatened to the victim or society and the culpability
of the offender.” Alvarez, 63 S.W.3d at 581 (citing Moore v. State, 54 S.W.3d 529, 542 (Tex.
App.—Fort Worth 2001, pet ref’d)). “Only if we determine that the sentence is grossly
disproportionate” under the first factor “do we consider the remaining Solem factors.” Id.; see also
Robertson v. State, 245 S.W.3d 545, 549 (Tex. App.—Tyler 2007, pet ref’d). Bernal pled guilty
to aggravated robbery with a deadly weapon which is a first-degree felony. At the sentencing
hearing, Bernal’s attorney acknowledged that “this is a very egregious case” and the testimony at
the plea hearing showed “the severity of the matter.” The State also noted that the offense was
“very violent” and that Bernal “indiscriminately” chose his victim. Furthermore, Bernal
committed the offense while on parole from the Texas Juvenile Justice Department for drug
dealing. Finally, the trial court noted the victim in the case “was hurt really badly.” In comparison
to the gravity of the offense, Bernal received a relatively lenient sentence at the lower end of the
statutory range. Therefore, having considered the gravity of the offense and the sentence imposed,
we hold Bernal’s sentence of 15 years’ imprisonment is not grossly disproportionate to the offense.
Accordingly, we need not consider the other two Solem factors. Alvarez, 63 S.W.3d at 581.
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04-13-00768-CR
CONCLUSION
The judgment of the trial court is affirmed.
Catherine Stone, Chief Justice
DO NOT PUBLISH
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