Andrew Gibbs v. State ( 2012 )

Opinion issued June 14, 2012.

In The

Court of Appeals

For The

First District of Texas

————————————

NO. 01-11-00934-CR

———————————

Andrew Gibbs, Appellant

V.

The State of Texas, Appellee

On Appeal from the 209th Judicial District Court

Harris County, Texas

Trial Court Case No. 1249909

MEMORANDUM OPINION

          Appellant, Andrew Gibbs, without an agreed punishment recommendation from the State, pleaded guilty to the offense of aggravated robbery,[1] and the trial court assessed his punishment at confinement for twenty-five years.  In two issues, appellant contends that the trial court imposed a sentence that constitutes cruel and unusual punishment.[2]

          We affirm.

Background

          A Harris County grand jury issued a true bill of indictment, accusing appellant of committing the offense of aggravated robbery by committing theft of property owned by the complainant, Raul Porras, knowingly threatening Porras with imminent bodily injury and death, and exhibiting a deadly weapon. Appellant signed his plea of guilty and accompanying admonishments, without an agreed punishment recommendation, and the trial court reset the matter for a pre-sentence investigation (“PSI”) and punishment hearing.

          The PSI report indicated that on January 18, 2010, appellant, who was eighteen years old, and Steven Lee Dorsey entered a GameStop video game store.  Appellant pointed a firearm at Porras, the store manager, and demanded money from the cash register, ordering Porras to “hurry” or appellant “would kill him.”  After taking money from the cash register, appellant followed Porras to the back of the store, where he also took four gaming consoles.  Appellant then pointed his firearm at another employee and two customers, claiming that he would shoot them if they moved, before he fled the scene with Dorsey.  On January 24, 2010, the Houston Police Department received a tip that appellant had committed the robbery.  A police officer located appellant at his apartment complex, and appellant attempted to evade arrest before he was detained. 

          At the punishment hearing, Porras testified that appellant walked into the store and immediately pointed his firearm at Anthony George, a customer.  The two briefly “went into a fight” over the firearm before Dorsey, acting as if he had a firearm as well, had the customer lie down on the ground.  Dorsey then ordered Porras to open the cash register, but at some point he yelled to appellant, “He’s calling for back up, he’s calling for back up.  Shoot him.” Appellant “point[ed] the firearm directly” at Porras, but Porras was able to open the cash register and hand money to appellant, at which point “things seemed to calm down.”   Porras then led appellant to the back room, where appellant took several gaming consoles before leaving. Porras stated that the incident left him very upset because, although he had been a victim of robberies before, he had never been involved in a robbery where the assailants pointed a firearm at several employees and threatened to shoot them. 

George testified that he was speaking to Porras when he turned around and saw appellant directly in front of him, pointing a firearm at his head.  George attempted to disarm appellant, but the struggle ended when Dorsey threatened to shoot him.  Appellant then grabbed George by the leg and dragged him behind the counter so incoming customers would not be able to see him. 

In closing argument, the State argued that the robbery was “thought-out,” appellant was “experienced” and “aggressive,” and he acted with no “concern for [anyone’s] safety or well-being.”  The trial court sentenced appellant to confinement for twenty-five years.

Cruel and Unusual Punishment

  In two issues, appellant argues that the trial court erred in imposing a sentence grossly disproportionate to the underlying offense, resulting in cruel and unusual punishment in violation of the United States Constitution and the Texas Constitution, because of his “lack of a significant criminal history” and his age.  See U.S. Const. amend. VIII; Tex. Const. art. I, § 13.  Appellant does not argue that Article I, section 13 of the Texas Constitution provides any more or different protection than its federal counterpart.  Accordingly, we examine his arguments solely under the Eighth Amendment.  See Buster v. State, 144 S.W.3d 71, 81 (Tex. App.—Tyler 2004, no pet.); see also Baldridge v. State, 77 S.W.3d 890, 893–94 (Tex. App.—Houston [14th Dist.] 2002, pet. ref’d).

Almost every right, constitutional and statutory, may be waived by failing to object.  Solis v. State, 945 S.W.2d 300, 301 (Tex. App.—Houston [1st Dist.] 1997, pet. ref’d) (citing Smith v. State, 721 S.W.2d 844, 855 (Tex. Crim. App. 1986)).  In order to preserve for appellate review a complaint that a sentence is grossly disproportionate, constituting cruel and unusual punishment, a defendant must present to the trial court a timely request, objection, or motion stating the specific grounds for the ruling desired.  See Tex. R. App. P. 33.1(a); Ladd v. State, 3 S.W.3d 547, 564 (Tex. Crim. App. 1999) (concluding that defendant did not preserve cruel and unusual punishment complaint for appellate review); Arriaga v. State, 335 S.W.3d 331, 334 (Tex. App.—Houston [14th Dist.] 2010, pet. ref’d).  

Here, appellant did not assert his constitutional claims in the trial court.  Nevertheless, appellant argues that he can now raise the issues on appeal because the Texas Court of Criminal Appeals has “recently reviewed the constitutionality of severe prison sentences despite such claims being raised for the first time on appeal.”  See Meadoux v. State, 325 S.W.3d 189 (Tex. Crim. App. 2010).  In Meadoux, the court of criminal appeals determined that the Eighth Amendment did not bar the defendant’s sentence of life in prison without parole for a capital crime he committed at the age of sixteen.  Id. at 191.  The State argued to the court of criminal appeals that the defendant had not preserved his Eighth Amendment claim that his sentence was cruel and unusual.  Id. at 193 n.5.  However, the court of criminal appeals noted that the State had not raised the preservation issue in the court of appeals, the court of appeals had not addressed preservation, and the petition for review was not granted for its consideration. Id.  The court of criminal appeals stated that, although issues of error preservation are systemic in first-tier review courts, “that means only that a court of appeals may not reverse a judgment of conviction without first addressing any issue of error preservation.”  Id. (citing Menefee v. State, 287 S.W.3d 9, 18 (Tex. Crim. App. 2009)).  Because the court of appeals affirmed the trial court’s judgment of conviction, it was unnecessary for the court of criminal appeals to address preservation of error or remand the case to the court of appeals to consider preservation.  Id. Thus, Meadoux does not stand for the proposition that a timely and specific objection is no longer required to preserve a complaint that a defendant’s sentence is unconstitutional.  Rather, it supports the proposition that error in the trial court must be preserved in order to serve as grounds for reversal.  See Tex. R. App. P. 33.1.  Because appellant did not preserve the alleged constitutional error by a timely and specific objection, we hold that appellant has waived this complaint for review.

Furthermore, even were we to address appellant’s constitutional claim, we cannot conclude that his sentence is grossly disproportionate to the offense for which he was convicted.  Generally, a punishment that falls within the legislatively prescribed range and is based upon the sentencer’s informed normative judgment will not be held cruel or unusual.  Ex parte Chavez, 213 S.W.3d 320, 323–24 (Tex. Crim. App. 2006).  However, the United States Supreme Court has stated that “although a sentence may be within the range permitted by statute, it may nonetheless run afoul of the Eighth Amendment prohibition against cruel and unusual punishment” when it is grossly disproportionate to the offense.  Diaz-Galvan v. State, 942 S.W.2d 185, 186 (Tex. App.—Houston [1st Dist.] 1997, pet. ref’d) (citing Solem v. Helm, 463 U.S. 277, 290, 103 S. Ct. 3001, 3010 (1983)). 

The criteria used to review Eighth Amendment complaints are: (1) the gravity of the offense and the harshness of the punishment, (2) the sentences imposed on other criminals in the same jurisdiction, and (3) the sentences imposed for the same offense in other jurisdictions.  Solem, 463 U.S. at 292, 103 S. Ct. at 3010.  The court reviewing the challenge considers the second and third criteria only if the first is met.  See McGruder v. Puckett, 954 F.2d 313, 316 (5th Cir. 1992).  Satisfying the initial criterion requires the sentence to be grossly disproportionate to the crime, i.e., when the severity of the sentence is extreme when objectively compared to the gravity of the offense.  See id.; Hicks v. State, 15 S.W.3d 626, 632 (Tex. App.—Houston [14th Dist.] 2000, pet. ref’d).  The gravity of the offense is determined by evaluating the harm caused or threatened and the offender’s culpability.  Dale v. State, 170 S.W.3d 797, 800 (Tex. App.—Fort Worth 2005, no pet.).

Appellant’s sentence of confinement for twenty-five years falls within the legislatively prescribed range for aggravated robbery sentences.  See Tex. Penal Code Ann. § 29.03(b) (Vernon 2011) (defining aggravated robbery as first-degree felony); id. § 12.32(a) (Vernon 2011) (setting punishment range for first-degree felonies to be confinement for no less than 5 years or more than 99 years).  Indeed, appellant’s sentence of confinement at twenty-five years is less than one-third of the maximum sentence prescribed by the legislature for aggravated robbery. See id. § 12.32(a).  The PSI report indicates that appellant pointed a firearm at Porras, George, and two other complainants and repeatedly threatened that he would shoot or kill them.  Appellant grabbed George by the leg and dragged him behind the counter, and George testified that he believed that he was “fixing to die.”  Dorsey and appellant left the store with about $300 in cash and four gaming consoles, each valued at about $300.  Porras described the robbery as “well thought out,” and he stated that the robbery left him “terrified” and afraid of his “sense of security.”    Although, as appellant argues, he did not have a “significant criminal history,” he did have two convictions for evading arrest and criminal trespass.  And the PSI report indicates that, in 2008, appellant was a “documented” member of a “criminal street gang.”  Under these circumstances, we cannot conclude that appellant’s sentence is grossly disproportionate to the underlying offense.[3]  See, e.g., Young v. State, 644 S.W.2d 18, 22 (Tex. App.—Houston [14th Dist.] 1982, pet. ref’d) (holding that defendant’s sentence of confinement for twenty-five years for “aggravated robbery of a couple involving a knife” not grossly disproportionate despite defendant having no prior arrests or convictions).

We overrule appellant’s first and second issues.

Conclusion

          We affirm the judgment of the trial court. 

                                                                   Terry Jennings

                                                                   Justice

Panel consists of Chief Justice Radack and Justices Jennings and Keyes.

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

---

[1]           See Tex. Penal Code Ann. § 29.03 (Vernon 2011).

[2]           See U.S. Const. amend. VIII; Tex. Const. art. I, § 13.

[3]           Appellant also fails to provide any argument relating to the second and third Solem factors, regarding the sentences imposed on other criminal defendants for the same offense in this and other jurisdictions.