Derrick Charles Brown v. State

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-12-00631-CR
DERRICK CHARLES BROWN APPELLANT
V.
THE STATE OF TEXAS STATE
----------
FROM CRIMINAL DISTRICT COURT NO. 2 OF TARRANT COUNTY
----------
MEMORANDUM OPINION 1
----------
Appellant Derrick Charles Brown pleaded guilty to engaging in organized
criminal activity through the underlying offense of aggravated assault with a
deadly weapon, namely his hands and feet, for which the trial court sentenced
him to confinement for life. In his sole point, Appellant argues that the trial
court’s sentence was grossly disproportionate to his offense, thus contravening
1
See Tex. R. App. P. 47.4.
the constitutional prohibition against cruel and unusual punishment in both the
Texas constitution and the United States Constitution. We affirm.
Background Facts
On January 1, 2012, Appellant and Terry Dunlap stopped at a gas station
to purchase cigarettes. Appellant had been drinking heavily at a nightclub that
evening. Dunlap and Wayman Henderson began arguing over whether Dunlap
had scuffed Henderson’s shoe. The argument escalated, and Appellant, Dunlap,
and Henderson began exchanging blows. An unidentified man entered the fray
and knocked Henderson unconscious with a strike to the head. Henderson fell to
the ground.
The three men repeatedly punched and kicked Henderson while he was
unconscious. Appellant continued to strike Henderson, even after Dunlap and
the third assailant had stopped. Bystanders were able to pull Appellant from
Henderson several times, but Appellant repeatedly returned to punch Henderson
and “stomp on his head.” At one point, Appellant was pulled off the victim but
returned over a minute later to assault Henderson again. A surveillance camera
captured Appellant’s attack on Henderson, which lasted about five minutes, and
the video was played for the trial court.
Henderson suffered severe injuries and was in a coma for some time. At
the time of sentencing, about eleven months after the incident, he was receiving
physical, occupational, and speech therapies. Henderson still displayed signs of
impaired ability to speak and reason.
2
Appellant pleaded guilty to engaging in organized criminal activity through
the underlying offense of aggravated assault with a deadly weapon. See Tex.
Penal Code Ann. §§ 22.02(a)(2) (West 2011), 71.02(a)(1) (West Supp. 2013).
Appellant also entered a plea of “true” to the enhancement paragraph alleging a
prior felony conviction, 2 thereby raising his punishment range to confinement for
not less than fifteen years or more than ninety-nine years. See id. § 12.42(c)(1)
(West Supp. 2013). Further, Appellant pleaded “true” to the allegation that he
used a “deadly weapon” in the course of the offense. See id. § 22.02(a)(2).
Appellant had prior convictions including robbery causing bodily injury,
unlawful possession of a firearm by a convicted felon, possession of marihuana
and possession of cocaine. At sentencing, Appellant also admitted to being a
gang member and having sold drugs. The trial court found Appellant guilty, the
enhancement allegation true, the deadly weapon allegation true, and sentenced
him to confinement in the Institutional Division of the Texas Department of
Criminal Justice for life. Appellant then filed this appeal.
Discussion
A disproportionate sentence claim must be preserved for appellate review.
Tex. R. App. P. 33.1(a)(1); Mercado v. State, 718 S.W.2d 291, 296 (Tex. Crim.
App. 1986) (en banc); Thompson v. State, 243 S.W.3d 774, 777 (Tex. App.—Fort
Worth 2007, pet. ref’d). To preserve a complaint for our review, a party must
2
The State waived a second enhancement paragraph alleging that
Appellant was a habitual offender.
3
have presented to the trial court a timely request, objection, or motion that states
the specific grounds for the desired ruling if they are not apparent from the
context of the request, objection, or motion. Tex. R. App. P. 33.1(a)(1); Landers
v. State, 402 S.W.3d 252, 254 (Tex. Crim. App. 2013); Sample v. State, 405
S.W.3d 295, 300 (Tex. App.—Fort Worth 2013, pet. ref’d). Further, the trial court
must have ruled on the request, objection, or motion, either expressly or
implicitly, or the complaining party must have objected to the trial court’s refusal
to rule. Tex. R. App. P. 33.1(a)(2); Pena v. State, 353 S.W.3d 797, 807 (Tex.
Crim. App. 2011). A reviewing court should not address the merits of an issue
that has not been preserved for appeal. Wilson v. State, 311 S.W.3d 452, 473
(Tex. Crim. App. 2010) (op. on reh’g); Sample, 405 S.W.3d at 300.
At the sentencing hearing, the trial court orally announced its assessment
of a life sentence and asked, “Any legal reason why I shouldn’t sentence him?”
Appellant’s attorney responded, “No, your Honor.” Appellant made no motion for
new trial or otherwise presented his objection to his life sentence to the trial
court. Appellant has therefore forfeited this point. See Tex. R. App. P.
33.1(a)(1); Clark v. State, 365 S.W.3d 333, 339 (Tex. Crim. App. 2012).
Even if Appellant had preserved his point, it lacks merit. Appellant’s
sentence falls within the statutory range for his offense. See Tex. Penal Code
Ann. §§ 12.42(c)(1) (West Supp. 2013), 22.02(a)(2), (b) (West 2011),
71.02(a)(1), (b) (West Supp. 2013). The trial court’s discretion to impose any
punishment within the prescribed range is essentially “unfettered.” Ex parte
4
Chavez, 213 S.W.3d 320, 323 (Tex. Crim. App. 2006). Punishment imposed
within the statutory range is generally not subject to challenge for excessiveness.
See Dale v. State, 170 S.W.3d 797, 799 (Tex. App.—Fort Worth 2005, no pet.)
(“Generally, punishment assessed within the statutory limits is not excessive,
cruel, or unusual punishment.”). Further, nothing in the record shows that
Appellant’s punishment, in light of his criminal history 3 and the horrific and
protracted violence of the assault, was grossly disproportionate to the crime so
as to violate the Eighth Amendment of the United States Constitution. See U.S.
Const. amend. VIII; Solem v. Helm, 463 U.S. 277, 284, 103 S. Ct. 3001, 3006
(1983); McGruder, 954 F.2d at 315–17 (setting forth the analysis for
proportionality of punishment); Moore v. State, 54 S.W.3d 529, 542 (Tex. App.—
Fort Worth 2001, pet. ref’d) (adopting the McGruder analysis for claims of
violations of the Eighth Amendment). We overrule Appellant’s sole point.
3
Appellant was a gang member and a repeat offender. His past offenses
included robbery causing bodily injury, unlawful possession of a firearm by a
convicted felon, and possession of crack cocaine. See McGruder v. Puckett, 954
F.2d 313, 316–17 (5th Cir. 1992) (gauging the proportionality of a sentence in
light of previous convictions for crimes of violence).
5
Conclusion
Having overruled Appellant’s sole point, we affirm the trial court’s
judgment.
PER CURIAM
PANEL: GABRIEL, DAUPHINOT, and GARDNER, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: February 20, 2014
6