Ronald Anthony Booker v. State ( 2012 )

Opinion issued April 26, 2012

In The

Court of Appeals

For The

First District of Texas

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NO. 01-11-00115-CR

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Ronald ANTHONY Booker, Appellant

V.

The State of Texas, Appellee

On Appeal from the 339th District Court

Harris County, Texas

Trial Court Case No. 1171834

MEMORANDUM OPINION

          After appellant, Ronald Anthony Booker, entered a plea of guilty before a jury, the jury convicted him of the first degree felony offense of murder.[1]  The trial court assessed punishment at thirty years’ confinement.  In one issue, appellant contends that his sentence is disproportionate to the offense and, therefore, constitutes cruel and unusual punishment.

          We affirm.

Background

Before opening statements, appellant pleaded guilty to the offense of murder. The jury subsequently convicted him based solely on this plea, and he elected to have the trial court assess punishment.  The only testimony thus occurred during the punishment phase.

On June 13, 2008, thirteen-year-old Alexandra Nicks, a resident of the Southmore Gardens apartment complex in south Houston, had an argument with forty-three-year-old Raymond Ford, the complainant, in a courtyard of the complex.  During the argument, Nicks and Ford both yelled at each other, and Ford “got up in [Nicks’] face,” but he did not physically touch her, and he did not have a weapon during the argument.  Eventually, this argument ended, and Nicks later apologized to Ford.

Later that evening, Nicks saw Ford arguing with appellant, who did not live at Southmore Gardens, in front of Ford’s apartment.  Nicks could not determine what the men were arguing about, but she did see that Ford was holding a “little machete” at his side. Nicks testified that Ford was only holding the machete and that he was not making any threats with it.  She could not see if appellant was holding a weapon during this argument.  She stated that she believed Ford had been drinking, but he did not look like he was about to hurt appellant or anyone else present.  Nicks saw appellant leave the apartment complex after this argument concluded.  Approximately an hour and a half later, while she was in her apartment, she heard gunshots. She “waited a little while” and then walked over to Ford’s apartment.  Ford was still alive at this point, but he died shortly thereafter.

Morgan Grandberry, who also lived at Southmore Gardens at the time of this incident, testified that several people were out in the courtyard drinking and playing dominoes during Ford’s argument with Nicks.  She agreed that this argument was entirely verbal and that no physical contact occurred. Grandberry testified that, during the argument with Nicks, Ford briefly went inside his apartment and then returned holding a machete.  She stated that he did not make any threats with the machete; instead, he just held it and announced to the courtyard that he could protect himself. She agreed that Ford had had “a little bit too much to drink.”  Grandberry testified that she did not feel threatened by Ford. She also testified that she did not witness an altercation between Ford and appellant that evening.

After Ford’s argument with Nicks concluded, appellant walked through the gate into the complex, stood behind Grandberry, who was seated at a table in the courtyard, and cocked a pistol.  At this point, Grandberry left the courtyard and returned to her apartment.  She later went back to the courtyard to clean up the table, and no one else was outside.  She then saw appellant walk back through the gate into the complex and towards Ford’s apartment.  She again returned to her apartment, and as soon as she shut her front door, she heard gunshots.  She went to Ford’s apartment, and she saw him lying on the floor with multiple gunshot wounds.

San Antonio Ford, Raymond Ford’s brother, testified that Ford used a cane and, occasionally, a scooter to get around his apartment because he had difficulty walking as a result of knee trouble.  He characterized Ford’s movements as “very slow.”

George “Donnell” Keller testified that appellant lived with him at a nearby address and that they were hanging out with other friends and playing video games at Southmore Gardens on the night of Ford’s murder. Keller could hear the altercation between Ford and Nicks from inside his friend’s apartment, but he did not go outside to investigate.  According to Keller, appellant was outside in the courtyard during this incident. Later, appellant went into the apartment and told Keller about both Ford’s altercation with Nicks and an altercation that he had subsequently had with Ford.  Appellant told Keller that he had “gotten into it” with Ford and that Ford had “pulled a knife on him.”  Appellant, Keller, and two other friends then drove from Southmore Gardens to Keller’s house.  Approximately thirty minutes later, the group drove back to Southmore Gardens, and Keller stated that appellant appeared “upset” during this drive.

When they arrived back at Southmore Gardens, appellant told Keller to clear the people playing dominoes out from the courtyard. As appellant made this demand, Keller could see that appellant was holding a gun, and he heard appellant cock the gun.  After appellant went into the complex, Keller was returning to their car when he heard gunshots.  Keller, appellant, and their two friends immediately left Southmore Gardens.  When appellant got into the car, he told Keller that “[i]t was him or me” and that “the dude had threatened his life.”

Houston Police Department Officer J. Pena testified that he took photographs of Ford’s apartment and recovered physical evidence.  He stated that when he arrived at the scene he saw Ford lying face-down on the living room floor and partially on top of his cane, which had a bullet hole in it.  Pena recovered ten spent bullet casings from the living room of Ford’s apartment.  He testified that he found some casings near the front door of the apartment and some casings closer to Ford’s body, which was located further inside the living room.  He stated that the relative location of the casings was consistent with “somebody entering the front door, walking in to the right and progressing into the apartment living room area.”

Dr. Pramod Gumpeni, of the Harris County Medical Examiners’ Office, testified regarding the results of Ford’s autopsy.  Dr. Gumpeni testified that Ford had eight perforating and penetrating gunshot wounds, one graze wound, and blunt trauma to the head, which was consistent with Ford hitting something as he fell to the ground after being shot.  Ford sustained injuries to, among other organs and tissues, his ribs, diaphragm, liver, lungs, stomach, and aorta.  Dr. Gumpeni testified that three of the gunshot wounds could have been fatal and that three of the wounds entered Ford’s body from behind. He stated that the gunshot wound on Ford’s right leg had “pseudo stippling” around it, indicating that the bullet had passed through another object before hitting Ford.  He agreed with the prosecutor that the stippling marks were consistent with the bullet passing through Ford’s cane before striking his leg.

Appellant testified on his own behalf.  He stated that at the time of Ford’s murder he was on deferred adjudication for delivery of a controlled substance.[2]  He admitted that he had violated the terms of his community supervision by failing to report and by testing positive for marijuana use.  He testified that that incident was the only other time in which he had been in trouble with the law.

Appellant stated that he usually hung out at Southmore Gardens every day.  He knew Ford and testified that he had never had any problems with him before this incident. Appellant witnessed Ford’s altercation with Nicks, but he did not say anything to Ford about it.  According to appellant, several minutes later, as he was about to leave Southmore Gardens, Ford started a conversation with him about the incident with Nicks.  The conversation escalated into an argument, and, during the argument, Ford went into his apartment, returned with a knife or machete, and started “making threats with it.”  Appellant stated that he did not see the weapon at first and that someone else pointed it out to him when he started to approach Ford.  Appellant testified that he felt a little nervous and scared and that he then got in a friend’s car and left Southmore Gardens.

          Appellant testified that he felt “played” and “disrespected” after this altercation with Ford, and, because he went over to Southmore Gardens every day, he felt that he needed to “protect [himself]” against any future incidents.  When he arrived at his house, he picked up a gun and went back to Southmore Gardens to “resolve the matter” with Ford.  He testified that he had no intention of harming Ford; rather, he wanted to settle their disagreement “so [he would not] have to be looking over [his] shoulder every time [he went] over there.”  He stated that he believed he needed the gun because Ford had already threatened him with a weapon earlier in the evening and he therefore needed protection.

          Appellant admitted that he and his friends smoked some marijuana when they arrived back at Southmore Gardens and that he told one of his friends to clear the courtyard before he went to Ford’s apartment.  He testified that the front door to Ford’s apartment was open, although the screen door was closed, and that he saw Ford sitting down in a chair as he approached. When he announced his presence, Ford told him to come into the apartment.  According to appellant, when he opened the screen door, he saw Ford reach for something, and because it was dark in the apartment and he did not know what Ford was reaching for, he “just fired and ran.”  Appellant believed that Ford was reaching for the machete that he had had outside with him during their earlier confrontation.  He could not recall how many times he fired the gun, but he testified that he was “firing and moving” out of the apartment.[3]  He admitted that he told Keller to make sure everyone was out of the courtyard “[b]ecause he [did not] know what was fixing to escalate” and that he held the gun in his hand as he walked up to Ford’s apartment.

          Several of appellants’ relatives testified on his behalf.  They each testified that they have never known appellant to be a violent person, that he was generally peaceful and law-abiding, and that this incident was completely out of character for appellant.  Appellant’s mother testified that he had never been in trouble with the law before he moved to Houston from Louisiana, and she attributed his legal troubles to “bad company.”

          The trial court assessed appellant’s punishment at thirty years’ confinement.  Appellant did not object or state any reason why this sentence should not be pronounced. He did not file a motion for new trial arguing that his sentence was disproportionate to the offense and, thus, cruel and unusual.

Cruel and Unusual Punishment

          In his sole issue, appellant contends that his thirty-year sentence is disproportionate to the offense and, therefore, constitutes cruel and unusual punishment.  The State responds that appellant failed to preserve this contention for appellate review because he did not object to the sentence either at the time it was assessed or in a motion for new trial.  The State also contends that appellant’s issue is meritless because the sentence was within the statutory limitations for the offense of murder, and appellant has not demonstrated that the sentence is grossly disproportionate to the offense.  We agree with the State.

          A.      Preservation

          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.  See Solem v. Helm, 463 U.S. 277, 290, 103 S. Ct. 3001, 3009 (1983); 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 Ham v. State, 355 S.W.3d 819, 825 (Tex. App.—Amarillo 2011, pet. ref’d) (“Constitutional rights, including the right to be free from cruel and unusual punishment, can be forfeited by a failure to raise a complaint on specific constitutional grounds in the trial court.”); 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.”).

          Appellant acknowledges that he did not object on cruel and unusual punishment grounds at the time the trial court assessed his sentence. Furthermore, the record reflects that he did not file a motion for new trial complaining that his sentence was disproportionate and constituted cruel and unusual punishment.  We therefore conclude that appellant has failed to preserve his contention that his thirty-year sentence constitutes cruel and unusual punishment.

          B.      Proportionality

Even if we were to address the merits of appellant’s sole issue, we would conclude that his thirty-year sentence is not disproportionate to the offense and, therefore, does not constitute cruel and unusual punishment.

          The sentencing authority has “essentially ‘unfettered’” discretion to impose any punishment within the prescribed statutory range.  See Ex parte Chavez, 213 S.W.3d 320, 323 (Tex. Crim. App. 2006) (quoting Miller-El v. State, 782 S.W.2d 892, 895 (Tex. Crim. App. 1990)).  Generally, punishment assessed within the statutory limits for the particular offense is not excessive, cruel, or unusual punishment. Dale v. State, 170 S.W.3d 797, 799 (Tex. App.—Fort Worth 2005, no pet.).  “A narrow exception to the general rule that a sentence within the statutory limits is not excessive, cruel, or unusual is recognized when the sentence is grossly disproportionate to the offense.”  Id.

We analyze an Eighth Amendment challenge “by reviewing the proportionality of the sentence compared to the crime.”  Arriaga v. State, 335 S.W.3d 331, 335 (Tex. App.—Houston [14th Dist.] 2010, pet. ref’d) (citing Graham v. Florida, 130 S. Ct. 2011, 2022 (2010)).  In this analysis, we consider (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 commission of the same offense in other jurisdictions.[4]  Id.; Dale, 170 S.W.3d at 799.  First, we make a “threshold comparison of the gravity of the offense against the severity of the sentence” by “judg[ing] the gravity of the offense in light of the harm caused or threatened to the victim or society and the culpability of the offender.” Dale, 170 S.W.3d at 800; see also Ham, 355 S.W.3d at 825–26 (“In the context of proportionality challenges, the United States Supreme Court has noted that the severity and irrevocability of murder distinguishes it from other crimes.”) (citing Graham, 130 S. Ct. at 2027). Only if we determine that the sentence is grossly disproportionate to the offense do we consider the two remaining factors.  See Arriaga, 335 S.W.3d at 335; Dale, 170 S.W.3d at 800; see also Ham, 355 S.W.3d at 826 (“The precise contours of the ‘grossly disproportionate’ standard are unclear, but it applies in only ‘exceedingly rare’ and ‘extreme’ cases.  ‘The gross disproportionality principle reserves a constitutional violation for only the extraordinary case.’”) (quoting Lockyer v. Andrade, 538 U.S. 63, 73, 77, 123 S. Ct. 1166, 1173, 1175 (2003)).

          Appellant contends that the sentence is disproportionate to the offense because (1) although he had previously been placed on deferred adjudication for delivery of a controlled substance, he has no history of committing violent crimes; (2) there is no indication that appellant had committed any other bad acts before this incident; (3) he “armed himself” only because Ford had “armed himself earlier that evening”; and (4) he did not intend to harm Ford when he arrived at Ford’s apartment, but instead only intended to resolve his earlier disagreement with Ford.

          Here, appellant pleaded guilty before the jury to the first degree felony offense of murder.  See Tex. Penal Code Ann. §§ 19.02(b)(1)–(2), (c) (Vernon 2011).  The applicable statutory punishment range was five to ninety-nine years’ confinement or confinement for life, plus a fine of up to $10,000.  Id. § 12.32 (Vernon 2011).  The trial court in this case assessed punishment at thirty years’ confinement. Appellant’s sentence falls within the permissible statutory punishment range; indeed, considering that the punishment range is from five years to life, appellant’s sentence of thirty years falls within the lower end of the punishment range.[5]

          Appellant pleaded guilty to murdering Ford, and he conceded during his testimony that this was not an appropriate case to raise the theory of self-defense.  Appellant contends that he did not intend to harm Ford when he arrived at his apartment and that he merely wished to resolve their earlier disagreement.  He testified, however, that he had his friends clear other people out of the Southmore Gardens courtyard “[b]ecause he [did not] know what was fixing to escalate” and that he approached Ford’s apartment with the gun in his hand.  Two witnesses recalled appellant cocking the gun before walking to Ford’s apartment.  Although appellant could not recall how many times he fired the gun while in Ford’s apartment, Dr. Gumpeni testified that Ford had eight “perforating and penetrating” gunshot wounds and one graze wound.  Dr. Gumpeni testified that several major organs were damaged, that at least three of the gunshot wounds could have been fatal, and that three of the gunshot wounds entered Ford’s body from behind.

          Officer Pena testified that Ford was discovered lying face-down on the floor of his living room and lying partially on top of his cane, which had a bullet hole in it.  Officer Pena recovered ten spent bullet casings from Ford’s apartment.  The casings were located in different areas of the apartment, with some closer to the front door and some closer to Ford’s body. He testified that the location of the spent casings was consistent with the shooter’s entering the apartment and “progressing into the apartment living room area.”[6]  No weapon was found near Ford’s body or the chair in which he had been sitting when appellant arrived.

          Although appellant has no history of committing violent crimes, he did acknowledge that he had a weapon in his possession when he was previously arrested for delivery of a controlled substance.  He also testified that he had sold cocaine on multiple occasions and that he had violated the terms of his deferred adjudication by failing to report and by using marijuana.

          The record reflects that appellant violently murdered an unarmed man who was no immediate threat to him by shooting him eight times.  He received a sentence of thirty years, which falls within the lower end of the punishment range for murder.  We conclude that, based on this record, appellant’s sentence is not unconstitutionally disproportionate to the offense of murder and, thus, does not constitute cruel and unusual punishment.

          We overrule appellant’s sole issue.

Conclusion

          We affirm the judgment of the trial court.

                                                                   Evelyn V. Keyes

                                                                   Justice

Panel consists of Justices Keyes, Bland, and Sharp.

Do Not Publish.  Tex. R. App. P. 47.2(b).

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[1]           See Tex. Penal Code Ann. § 19.02(b)(1)–(2) (Vernon 2011).

[2]           On cross-examination, appellant admitted that he had a gun in his possession when he was arrested for delivery of a controlled substance.

[3]           On cross-examination, appellant stated that he “[n]ever came into the apartment.”

[4]           We note that even if appellant had preserved this contention for appellate review, “there is no evidence in the record comparing the sentences imposed on persons in Texas with sentences imposed against defendants in other jurisdictions who committed a similar offense.”  Guin v. State, 209 S.W.3d 682, 687–88 (Tex. App.—Texarkana 2006, no pet.).

[5]           To the extent appellant contends that his sentence violates the Texas Constitution, we note, “It has long been recognized that if the punishment assessed is within the range of punishment established by the Legislature under its constitutional authority, there is no violation of the state constitutional provisions against cruel and unusual punishment. . . .  Neither by argument nor authority has appellant established that the provisions of the Texas Constitution offer broader or greater protection than the Eighth Amendment . . . .”  Baldridge v. State, 77 S.W.3d 890, 893–94 (Tex. App.—Houston [14th Dist.] 2002, pet. ref’d) (citing Puga v. State, 916 S.W.2d 547, 550 (Tex. App.—San Antonio 1996, no pet.)).

[6]           Appellant testified inconsistently.  He testified that he did not actually enter Ford’s apartment, but, instead, he stayed in the doorway.  He also testified, however, that when he saw Ford reach for something, he started “firing and moving” out of the apartment.