Jerome Lydell Thomas v. State ( 2012 )

Opinion issued June 14, 2012.

In The

Court of Appeals

For The

First District of Texas

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NO. 01-11-00653-CR

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Jerome Lydell Thomas, Appellant

V.

The State of Texas, Appellee

On Appeal from the 149th District Court

Brazoria County, Texas

Trial Court Case No. No. 63310

MEMORANDUM OPINION

Jerome Lydell Thomas was charged by indictment with aggravated robbery.  Tex. Penal Code Ann. § 29.03 (West 2011).  Thomas pleaded not guilty. A jury found him guilty and sentenced him to twenty years in prison and assessed a fine of $1,800.00.  On appeal, Thomas argues that his punishment of twenty years in prison is disproportionate to his crime, constitutes cruel and unusual punishment, and violates his rights under both the United States and Texas Constitutions. We affirm. 

Background

          On August 26, 2010 at approximately one-thirty in the morning, Thomas and two other men entered a Chevron store in Brazoria County and robbed it.  The store’s video surveillance showed the three men enter the store with pieces of cloth concealing their faces.  While Thomas pointed a gun at the store’s sole employee, the two other men took the cash register drawer, cash box, and cigarettes.  Shortly thereafter, police officers stopped a car matching the description of the robbers’ car, and arrested Thomas and the car’s three other occupants. Police recovered the stolen items from the car.  A jury found Thomas guilty of aggravated robbery and sentenced him to twenty years in prison.

Analysis

In his sole issue on appeal, Thomas contends that his punishment is “disproportionate to the crime committed,” constitutes cruel and unusual punishment and thus violates his rights under the Eighth Amendment of the United States Constitution and Article 1, Section 13 of the Texas Constitution.  U.S. Const. amend. 8; Tex. Const. art. I, § 13.  Specifically, Thomas contends that the sentence is disproportionate to the crime because he had no prior criminal convictions, he would make a better contribution to society working rather than in prison, he admitted to robbing the store and apologized, and the employee was not physically injured during the robbery.

The Eighth Amendment to the United States Constitution requires that a criminal sentence be proportionate to the crime for which a defendant has been convicted. Graham v. Florida, 130 S. Ct. 2011, 2021 (2010) (citing Weems v. United States, 217 U.S. 349, 367, 30 S. Ct. 544 (1910)); Noland v. State, 264 S.W.3d 144, 151 (Tex. App.—Houston [1st Dist.] 2007, pet. ref’d).  However, as a prerequisite for presenting a complaint for appellate review, including a complaint that a particular sentence constitutes cruel and unusual punishment, the complaining party must make a timely request, objection, or motion that states the grounds for the ruling sought from the trial court with sufficient specificity to make the trial court aware of the complaint.  See Tex. R. App. P. 33.1(a)(1)(A); Noland, 264 S.W.3d at 151; see also Wynn v. State, 219 S.W.3d 54, 61 (Tex. App.—Houston [1st Dist.] 2006, no pet.) (“The record does not indicate that appellant objected at trial to the sentence of life imprisonment. Nor did he raise these arguments in a motion for new trial.  Failing to object in the trial court to an alleged disproportionate sentence waives any error.”).

          Thomas did not object to his sentence at any point in the trial court.  After reading aloud the jury’s verdict on punishment but before pronouncing Thomas’s sentence of twenty years in prison, the trial court asked the parties whether there was any legal reason why it should not proceed with sentencing.  Thomas’s counsel affirmatively stated that the defense had no legal reason for the trial court not to impose the sentence.  Similarly, Thomas did not object after sentence was pronounced. Nor did Thomas file a motion for new trial.  Because Thomas did not present his complaint about his sentence to the trial court, we conclude that Thomas has failed to preserve the complaint for our review.  See Tex. R. App. P. 33.1(a)(1)(A); Wynn, 219 S.W.3d at 61.

          We overrule Thomas’s sole issue. 

Conclusion

          We affirm the judgment of the trial court.

                                                                   Rebeca Huddle

                                                                   Justice

Panel consists of Justices Higley, Bland, and Huddle.

Do not publish.  Tex. R. App. P. 47.2(b).