Joseph Ervin Robbins v. State

IN THE TENTH COURT OF APPEALS No. 10-06-00206-CR Joseph Ervin Robbins, Appellant v. The State of Texas, Appellee From the 18th District Court Johnson County, Texas Trial Court No. F38796 MEMORANDUM Opinion Joseph Ervin Robbins was charged with aggravated kidnapping and aggravated robbery.[1] A jury convicted Robbins of aggravated robbery and sentenced him to ninety-nine years in prison. We affirm. In one issue, Robbins contends that his punishment constitutes cruel and unusual punishment because it is excessive and a result of passion and prejudice. Specifically, Robbins argues that a ninety-nine-year sentence is “understandable” for aggravated kidnapping, but not aggravated robbery. This is essentially an argument that the punishment is disproportionate to the crime. The State responds that (1) Robbins failed to preserve this issue for appellate review; and (2) Robbins’s punishment is not excessive. At no time did Robbins object that the sentence was excessive. We believe that the right against cruel and unusual punishment is a category three right under Marin, requiring an objection in the trial court. See Marin v. State, 851 S.W.2d 275, 279 (Tex. Crim. App. 1993). Robbins’s complaint has been waived.[2] Nevertheless, we will address the merits in the event preservation is not required. See id. In determining whether a sentence is grossly disproportionate, we consider not only the present offense but also an accused’s criminal history. Buster v. State, 144 S.W.3d 71, 81 (Tex. App.—Tyler 2004, no pet.) (citing Davis v. State, 119 S.W.3d 359, 363 (Tex. App.—Waco 2003, pet. ref'd)). The legislature has the power to define crimes and prescribe penalties. Id. If the sentence falls within the limits prescribed by a valid statute, the punishment is not excessive, cruel, or unusual. Id. Texas courts and the Fifth Circuit Court of Appeals require a threshold determination that the sentence is grossly disproportionate to the crime before addressing the elements of the Solem test. See Willis v. State, 192 S.W.3d 585, 596 (Tex. App.—Tyler 2006, pet. ref'd) (citing Solem v. Helm, 463 U.S. 277, 292, 103 S. Ct. 3001, 3011, 77 L. Ed. 2d 637 (1983) (the proportionality of a sentence is evaluated by considering (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 commission of the same crime in other jurisdictions)). Having been acquitted of aggravated kidnapping, Robbins argues that the jury must have doubted the complainant’s testimony, but was “inflamed by the passions they had set aside during the guilt/innocence phase and inflicted nearly the harshest punishment possible.”[3] Robbins argues that the sentence is excessive because he suffers from anger problems, is bipolar, is uneducated, comes from a broken home involving foster care, conflict, and a disabled mother, was unemployed and homeless at the time of the offense, and is “scatterbrained.” The State points to the fact that Robbins used a knife against the complainant and threatened to harm and/or kill her, the complainant was traumatized by the event, Robbins is “predisposed to anger and violence,” Robbins has been transferred to several different prison units for “hard-to handle inmates,” and Robbins’s sentence falls within the range of punishment prescribed by the Legislature. The State also points to a pending assault against a fellow inmate, a prior robbery conviction, and a prior conviction for burglary of a habitation. In light of these facts, the jury could have sentenced Robbins to ninety-nine years in prison without “passion or prejudice” playing a role in its decision. We cannot say that Robbins’s sentence was the result of passion and prejudice. See Bennett v. State, 831 S.W.2d 20, 23 (Tex. App.—El Paso 1992, no writ) (absent evidence indicating that “the punishment assessed was the result of and enhanced by passion and prejudice, we will not disturb the sentence”). Nor has Robbins met the requirement of a threshold determination that the sentence is grossly disproportionate to the crime. See Willis, 192 S.W.3d at 596. We overrule Robbins’s sole point of error and affirm the trial court’s judgment. FELIPE REYNA Justice Before Justice Vance, Justice Reyna, and Judge Armstrong[4] Affirmed Opinion delivered and filed November 7, 2007 Do not publish [CRPM] [1] Using a knife, Robbins stole a vehicle with the complainant inside. [2] In Hernandez v. State, 10 S.W.3d 812 (Tex. App.—Beaumont 2000, pet. ref’d), the court determined that the point on appeal did not raise systemic issues. Earlier, that court noted that issues involving cruel and unusual punishment are subject to procedural default. Hawkins v. State, 964 S.W.2d 767, 769 (Tex. App.—Beaumont 1998, pet. ref’d) (citing Wright v. State, 930 S.W.2d 131, 133 (Tex. App.—Dallas 1996, no writ)). [3] Robbins bases this argument on several facts: (1) the State emphasized testimony that Robbins called the complainant a “bitch,” was “rough” and “very forceful,” and held a knife to the complainant’s throat; (2) the jury reviewed the complainant’s testimony prior to acquitting Robbins of aggravated kidnapping; (3) in opening, the State requested “sixty [years] to life,” but in closing requested “forty, fifty [years];” and (4) the State “rebuke[d]” the jury for acquitting Robbins of aggravated kidnapping. [4] The Honorable Ernie B. Armstrong, Judge of the 132nd Judicial District Court, sitting by assignment of the Chief Justice of the Supreme Court of Texas pursuant to section 74.003(h) of the Government Code. See Tex. Gov’t Code Ann. § 74.003(h) (Vernon 2005).