Spencer, William Wayne v. State

NUMBER 13-99-505-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI

_ __________________________________________________________________

WILLIAM WAYNE SPENCER

, Appellant,

v.

THE STATE OF TEXAS

, Appellee.

_____ ______________________________________________________________

On appeal from the 240th District Court

of Fort Bend County, Texas.

____________________________________________________________________

O P I N I O N

Before Chief Justice Seerden and Justices Dorsey and Yañez

Opinion by Chief Justice Seerden

Appellant, William Wayne Spencer, pleaded guilty to aggravated robbery. On appeal, he argues that his plea was not knowing and voluntary because the trial court failed to admonish him as to the range of punishment. Appellant further argues that his sentence of forty-five years was not proportional to the offense committed, and thus constituted cruel and unusual punishment. We affirm.

Background

Appellant was charged with the offense of aggravated robbery. He pleaded guilty to the offense and had the court assess punishment without an agreed recommendation from the State. The court held a punishment hearing and accepted evidence from the State and appellant. The court then sentenced appellant to forty-five years confinement in the Institutional Division of the Texas Department of Criminal Justice.

Voluntariness of the Plea Agreement

Article 26.13(a) of the Texas Code of Criminal Procedure provides that, before accepting a guilty plea, the trial court must admonish a defendant regarding: (1) the punishment range; (2) the fact that the State's sentencing recommendation is not binding on the court; (3) the limited right to appeal; and (4) the possibility of deportation. See Tex. Code Crim. Proc. Ann. art. 26.13(a) (Vernon 1989). The admonishments may be made either orally or in writing. Id. If the admonishments are made in writing, the defendant and his lawyer must file a statement that the defendant understood the admonitions and was aware of the consequences of the guilty plea. Id.

The purpose of article 26.13 is to ensure that only a constitutionally valid plea is entered by the defendant and accepted by the trial court. See Meyers v. State, 623 S.W.2d 397, 402 (Tex. Crim. App. 1981). To be constitutionally valid, a guilty plea must be knowing and voluntary. See Brady v. United States, 397 U.S. 742, 749, 90 S. Ct. 1463 (1970). The trial court's substantial compliance with article 26.13 establishes a prima facie case that the plea was valid. See Tex. Code Crim. Proc. Ann. art. 26.13(c); Eatmon v. State, 768 S.W.2d 310, 312 (Tex. Crim. App. 1989); Ruffin v. State, 3 S.W.3d 140, 145 (Tex. App.--Houston [14^th Dist.] 1999, pet. ref'd). Substantial compliance exists when the trial court has undertaken to admonish the defendant, the sentence given was within the range prescribed by law, and the defendant has failed to affirmatively show harm. See Hughes v. State, 833 S.W.2d 137, 139-40 (Tex. Crim. App. 1992). Upon a showing of substantial compliance, the burden shifts to appellant to show that he entered the plea without understanding the consequences of his action and he suffered harm. Eatmon, 768 S.W.2d at 312.

In his first and second issues, the appellant contends that he understood the trial court's admonishments to mean that he would receive a fifteen year sentence, and thus his plea was involuntary. The record reflects that the court initially instructed the appellant that the range of punishment for his offense was five to ninety-nine years or life and a fine of up to $10,000. This admonition correctly states the range of punishment for appellant's offense. See Tex. Penal Code Ann. §12.32 (Vernon 1994). However, appellant bases his complaint on a subsequent exchange between the court and appellant:

Court: I want to make sure you understand where you stand, because when we come back on Friday to hear that presentence investigation and make a decision on what the punishment is going to be and the­I'm not bound in the punishment phase of the trial because the State hasn't agreed on any number of years. Do you see what I'm saying?

Defendant: Yes, sir.

Court: I'm not bound by that five years. Do you understand?

Defendant: What do you mean by "not bound?"

Court: If you plead guilty and I approve that, the only way I can do anything different is to allow you to withdraw your plea; but I'm telling you now if we do a presentence investigation, the Court's going to approve the fifteen years. I'm not going to be bound by­I don't know what the facts of this case are, and the only time I'm going to hear that is at the punishment phase of the trial. See what I'm saying? I'm not going to be bound by that fifteen year agreement that you entered into. I may give you fifteen. I may give you less. I may give you more. I don't know. Do you understand all that?

Defendant: Yes, sir.

Court: I want to make sure you understand that. Coming back on Friday and saying, "Well, the judge gave me more than fifteen," if I do, then you want to withdraw your plea­See what I'm saying?

Defendant: No, sir. I plead guilty.

Court: And without a recommendation?

Defendant: (Nods head).

Court: And you understand what that means?

The record fails to reflect that appellant responded to the court's question. The ranges of punishment mentioned in the above exchange reflect the amount of time requested by appellant, five years, and the amount of time suggested by the state, fifteen years, as an "agreed recommendation," which was rejected by appellant.

While this Court may agree that the foregoing exchange was unclear, a review of the entire record shows that the trial court correctly and repeatedly admonished the appellant as to the correct range of punishment. Significantly, the court correctly informed the appellant of the applicable range of punishment more than once after the allegedly misleading exchange.

Immediately following the above colloquy, the appellant confirmed that his attorney informed him as to the range of punishment. The court then specifically directed appellant's counsel to go over the court's written admonitions with appellant to "make sure he knows what his constitutional rights are." Appellant fully executed the court's written admonishments, which included the range of punishment for appellant's offense, by initialing each paragraph thereof and signing it. The admonishments also included a statement by the appellant's attorney stating that he believed that the appellant fully understood the court's admonitions, that the appellant was fully aware of the consequences of his plea, and that the appellant "knowingly and voluntarily" executed the admonitions.

The court then asked the appellant if anyone had forced him, coerced him, threatened him, or "told you you'd get by light" to make him plead guilty. The court again advised appellant that the range of punishment was confinement in the Institutional Division of the Texas Department of Corrections for not less than five years or more than ninety-nine years or life and a fine of up to $10,000. The court asked the appellant if he understood the range of punishment, and the appellant answered in the affirmative.

The appellant confirmed that his attorney explained the written admonitions. The appellant agreed that he was giving up his constitutional rights, and that he was ready to stipulate to certain evidence, and agreeing to certain admonishments as set out in the forms. He stated that he understood what the admonishments and waivers were, and that he understood the consequences.

The appellant confirmed that he was pleading guilty without an agreed recommendation from the State. Finally, the court inquired "You understand this Court has the ability to assess the full range of punishment?" The appellant replied in the affirmative, whereupon the court accepted the appellant's plea. During the punishment hearing itself, the appellant testified that he understood that the minimum sentence was five years, and that his "exposure" was five to ninety-nine years or life.

Based on the foregoing, we conclude that the trial court correctly admonished the appellant regarding the applicable range of punishment. Appellant has not shown that he entered his plea without understanding the consequences of his action. Rather, the record establishes that appellant's plea was knowing and voluntary. We overrule appellant's first and second issues.

Cruel and Unusual Punishment

In appellant's third issue, he contends that his sentence was excessive and thus violated the state and federal constitutional bans against cruel and unusual punishment. As a prerequisite to presenting a complaint for appellate review, the record must show that the complaint was made to the trial court by a timely request, objection, or motion. See Tex. R. App. P. 33.1(a)(1); Keith v. State, 975 S.W.2d 433, 433-34 (Tex. App.--Beaumont 1998, no pet.); Soliz v. State, 945 S.W.2d 300, 301 (Tex. App.--Houston [1^st Dist.] 1997, pet. ref'd). Appellant first complained about the excessiveness of his sentence in his pro se notice of appeal, which was addressed "To Whom It May Concern," and was filed with the clerk of the trial court. We will construe this document to include a post-judgment complaint in the nature of a motion for new trial, and will thus proceed to address the merits of appellant's argument.

Texas courts have traditionally held 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 or federal prohibitions against cruel and unusual punishment. See Jordan v. State, 495 S.W.2d 949, 952 (Tex. Crim. App. 1973); Samuel v. State, 477 S.W.2d 611, 614 (Tex. Crim. App. 1972). Appellant's sentence is well within the range of punishment established by the legislature, that is, not less than five years or more than ninety-nine years or life. We thus conclude that appellant's sentence is not cruel and unusual under the state and federal constitutions.

However, appellant's sentence is further subject to a proportionality analysis under the Eighth Amendment to the United States Constitution. See Solem v. Helm, 463 U.S. 277, 289-90, 103 S. Ct. 3001, 3009 (1983). In Solem, the Supreme Court identified three factors for a reviewing court to consider when determining whether the sentence was disproportionate, and thus cruel and unusual: (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 punishment for the same crime in other jurisdictions. Id.

The continued viability of the disproportionality doctrine and the Solem test was called into question by Harmelin v. Michigan, 501 U.S. 957, 111 S. Ct. 2680 (1991). See Sullivan v. State, 975 S.W.2d. 755, 757 (Tex. App.--Corpus Christi 1998, no pet.)(discussing history and status of disproportionality doctrine). Subsequent Texas cases construing Solem and Harmelin have concluded that a disproportionality analysis survives, and have applied the original Solem test or a modification thereof as articulated by the Fifth Circuit Court of Appeals in McGruder v. Puckett, 954 F.2d 313, 316 (5^th Cir.), cert. denied, 506 U.S. 849, 113 S. Ct. 146 (1992). Compare, e.g., Mathews v. State, 918 S.W.2d 666, 669 (Tex. App.--Beaumont 1996, pet. ref'd)(applying modification of Solem test); Puga v. State, 916 S.W.2d 547, 549-50 (Tex. App.--San Antonio 1996, no pet.)(same); Lackey v. State, 881 S.W.2d 418, 421 (Tex. App.--Dallas 1994, pet. ref'd)(same); with Simmons v. State, 944 S.W.2d 11, 14 (Tex. App.--Tyler 1996, pet. ref'd)(applying Solem test); Davis v. State, 905 S.W.2d 655, 664 (Tex. App.--Texarkana 1995, pet. ref'd).

Under McGruder, we initially make a threshold comparison of the gravity of the offense against the severity of the sentence and then ask whether the sentence is grossly disproportionate to the offense. McGruder, 954 F.2d at 316. Only if gross disproportionality is found do we then compare this sentence to sentences received for similar crimes in this and other jurisdictions. Id.; see Jackson v. State, 989 S.W.2d 842, 846 (Tex. App.­Texarkana 1999, no pet.); Lackey, 881 S.W.2d at 421.

On appeal, appellant addresses only the gravity of the offense and the harshness of the penalty, the first factor to be considered under either the Solem or McGruder test. Appellant argues that his criminal history consisted of "nonviolent" misdemeanors, and that he had never before served "more than a few weeks" in a county jail. These facts, according to appellant, show that his sentence was disproportionate to his crime. Appellant speculates that the imposition of a forty-five year sentence indicates that the trial court must have impermissibly assessed a sentence based on the affirmative finding of a deadly weapon and unsubstantiated allegations of gang membership. However, the record does not indicate the rationale for the court's sentence.

Appellant was convicted of an aggravated robbery occurring when he and another individual held up a convenience store. Appellant was armed with a gun during the commission of the robbery. Appellant first scouted the store to ensure that it was clear, then ordered the store clerk to open the cash drawer. The appellant held the gun "at his side" for the majority of the time rather than aiming it at the store clerk. He testified that he did so because he didn't want to scare the store clerk, and "[being I knew the camera was there, I didn't want to flash it like crazy or anything." The record shows that appellant's accomplice violently threw the store clerk to the ground, injuring him. Upon leaving the store, appellant and his accomplice told the clerk not to follow them, or they would shoot him. The appellant testified that the robbery was financially motivated, but that he didn't need the money "bad."

The evidence shows that appellant had four prior convictions within the previous two years: a misdemeanor possession of marijuana (for which he was sentenced to sixty days of imprisonment), a misdemeanor assault charge (forty-five days of imprisonment), and two separate misdemeanors of unlawfully carrying a weapon (forty-five days and sixty days of imprisonment). The appellant agreed that the sequence of the convictions showed a natural progression toward more violent crimes. Further, although appellant denied belonging to a gang, he admitted associating with known gang members.

While this Court might have imposed a lesser sentence, reviewing courts should grant substantial deference to the discretion of trial courts in imposing sentences. Eiland v. State, 993 S.W.2d 215, 216 (Tex. App.­San Antonio 1999, no pet.); see also Solem, 463 U.S. at 291. The foregoing evidence supports the trial court's decision to impose a sentence that was middle of the applicable range of punishment. We thus hold that Spencer's sentence of forty-five years is not disproportionate and does not violate the Eighth Amendment's prohibition against cruel and unusual punishment. We overrule Spencer's third issue.

Having overruled each of appellant's issues, the judgment of the trial court is affirmed.

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ROBERT J. SEERDEN, Chief Justice

Do not publish

.

Tex. R. App. P. 47.3.

Opinion delivered and filed

this 8th day of June, 2000.