Affirmed and Memorandum Opinion filed April 17, 2008.
In The
Fourteenth Court of Appeals
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NO. 14-07-00688-CR
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ALTON WARREN PAYNE, III, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 177th District Court
Harris County, Texas
Trial Court Cause No.1095707
M E M O R A N D U M O P I N I O N
Alton Warren Payne, III pleaded guilty to aggravated robbery with a deadly weapon without an agreed recommendation on punishment, and the trial court sentenced him to confinement for 18 years. On appeal, he claims that his sentence was disproportionate to the offense and violated his right to be protected against cruel and unusual punishment under the Eighth Amendment to the United States Constitution. We affirm.
Background
On December 27, 2005, appellant went to Jonathan Finkelman=s house to buy ten Lortab pills. Appellant received only nine pills. Appellant then went to Brandon Powell=s house, telling Powell and others that he had been shorted a pill. Powell and appellant=s friend, Steven Lopez, developed a plan to rob Finkelman because he had shortened appellant one pill. Lopez also called his brother, Jeffrey, to assist them in committing the robbery. Jeffrey and two males drove up to Powell=s house and appellant joined them in the car. Appellant followed the plan by calling Finkelman numerous times and negotiating the purchase of 250 pills. Appellant testified that Finkelman agreed to the drug deal only because he trusted appellant.
Appellant, Jeffrey Lopez, and the two males arrived at a local park where they were supposed to meet with Finkelman. Appellant realized that guns were in the car when Jeffrey inadvertently discharged a gun while they were waiting in the car for Finkelman to arrive at the park. After Finkelman arrived, appellant got into Finkelman=s car with Dontae Moore, one of the males. Appellant told Finkelman that Moore wanted to buy the pills, and Finkelman demanded money for them. Moore pulled out a gun and demanded that Finkelman give him all his pills. Finkelman handed over two bottles of pills and then reached for the gun. A first shot went off and missed Finkelman, but Moore fired more shots, killing Finkelman. Appellant also was shot as he fled the car.
Appellant originally was indicted for capital murder for causing Finkelman=s death during the robbery. The State reduced the charge to aggravated robbery in exchange for appellant=s guilty plea without an agreed recommendation as to punishment. At the sentencing hearing, the State acknowledged that appellant cooperated and testified at Moore=s trial, and that his testimony was crucial to its successful prosecution of Moore. The trial court sentenced appellant to confinement for 18 years.
Analysis
In his sole issue on appeal, appellant asserts that the trial court violated his Eighth Amendment right against cruel and unusual punishment when it sentenced him to confinement for 18 years for the offense of aggravated robbery. Appellant contends that this punishment was disproportionate because, although he facilitated the robbery, he did not plan it and did not know initially that guns would be used during the robbery. Appellant had no prior criminal history; he was 15 years old at the time of the robbery. He was the only truthful and cooperative accomplice in the case.
A. Preservation
To preserve a complaint for appellate review, a party must present to the trial court a timely request, objection, or motion stating the specific grounds for the ruling desired. Tex. R. App. P. 33.1(a). The constitutional right against cruel and unusual punishment may be waived by failing to object. Nicholas v. State, 56 S.W.3d 760, 768 (Tex. App.CHouston [14th Dist.] 2001, pet. ref=d). Because appellant failed to object on grounds of cruel and unusual punishment at the sentencing hearing or in his motion for new trial, he failed to preserve error for review.
B. Merits
However, even if appellant had preserved his complaint for review, we would find no merit in it because he failed to show that his punishment was disproportionate.
Generally, a sentence within the statutory range of punishment for an offense will not be held to be cruel or unusual under the United States Constitution. Ajisebutu v. State, 236 S.W.3d 309, 314 (Tex. App.‑Houston [1st Dist.] 2007, pet. ref=d). Appellant was convicted of aggravated robbery. The statutory range of punishment for this first degree felony offense is five to 99 years or life and a fine not to exceed $10,000. See Tex. Penal Code Ann. '' 12.32, 29.03 (Vernon 2003). Appellant was assessed confinement of 18 years, which is at the lower end of the statutory punishment range.
In Solem v. Helm, 463 U.S. 277, 290 (1983), the Unites States Supreme Court held that criminal sentences must be proportionate to the crime, and that even a sentence within the statutorily prescribed range may violate the Eighth Amendment. The Court analyzed proportionality by examining (1) the gravity of the offense and the harshness of the penalty; (2) the sentences imposed for similar crimes in the same jurisdiction; and (3) sentences imposed for the commission of the same crime in other jurisdictions. Id. at 292. Punishment is grossly disproportionate to a crime only when an objective comparison of the gravity of the offense against the severity of the sentence reveals the sentence to be extreme. See Harmelin v. Michigan, 501 U.S. 957, 1001(1991) (Kennedy, J., concurring) (citing Solem, 463 U.S. at 288, 303). The remaining factors of the Solem test will be considered only Ain the rare case@ that the sentence is grossly disproportionate to the offense. Id. at 1005 (citing Solem, 463 U.S. at 298-300).
Thus, in conducting an Eighth Amendment proportionality analysis, we first make a threshold comparison of the offense against the severity of the sentence, judging the gravity of the offense in light of the harm caused to the victim or society and the culpability of the offender. Ajisebutu, 236 S.W.3d at 314.
Appellant claims that his punishment was disproportionate to the offense committed because he did not plan the aggravated robbery; he was only 15 years old and high on drugs at the time of the robbery; he did not know the other co-actors had guns until Jeffrey Lopez accidently discharged his gun and Moore pulled out his gun in Finkelman=s car; he cooperated with the State and his testimony was key to the State securing Moore=s conviction; he had no prior convictions; and he pursued drug rehabilitation after the incident.
Appellant=s culpability in this case is evident. Appellant admitted that, without his participation, the aggravated robbery and death of Finkelman would not have occurred. Appellant called Finkelman and set up a sham drug purchase to facilitate the aggravated robbery of Finkelman after he had been shorted one pill in an earlier drug deal. Appellant arranged the meeting knowing that Finkelman would agree to meet with appellant because he trusted him. Although appellant claimed he did not plan the aggravated robbery, he was instrumental in setting it up; he continued to participate in the crime knowing that at least one of the co-actors had a gun; he did not withdraw when Moore threatened Finkelman with a gun; and fled the car only after Moore started shooting.
Appellant took advantage of Finkelman=s trust and acknowledged that Finkelman agreed to the sham drug deal only because he trusted appellant; appellant testified that A[i]f it weren=t for me, [Finkelman] wouldn=t have died; and I understand that I was -- I was one of the main ones because if he wouldn=t have trusted me, he most likely would have backed out of the deal.@ Moreover, the harm caused to Finkelman could not have been more severe; he was shot and killed during the robbery appellant set up.
Therefore, judging the gravity of the offense in light of the harm caused to Finkelman and the culpability of appellant, we conclude that the sentence was not so extreme as to be grossly disproportionate. Because this does not present one of the rare cases in which the assessed sentence is grossly disproportionate to the offense, we need not consider the remaining factors of the Solem test.
C. Ineffective Assistance of Counsel
Appellant claims in a footnote that he received ineffective assistance of counsel because his trial counsel failed to preserve error to his complaint that his sentence constituted cruel and unusual punishment violating his rights under the Eighth Amendment. We note that appellant does not provide any argument with regard to this ineffective assistance claim. Additionally, appellant cannot prevail on an ineffective assistance claim because he cannot show that his trial counsel performed deficiently.
In order to argue successfully that a trial counsel=s failure to object amounted to ineffective assistance, appellant must show that the trial court would have committed error in overruling such an objection. Vaughn v. State, 931 S.W.2d 564, 566 (Tex. Crim. App. 1996). Appellant cannot meet this burden. As discussed above, appellant=s sentence was not disproportionate and did not constitute cruel and unusual punishment. Therefore, had appellant=s trial counsel objected to the assessed sentence on Eighth Amendment grounds, the trial court would not have committed error in overruling that objection. Appellant=s trial counsel was not deficient.
Accordingly, appellant=s sole issue is overruled and the trial court=s judgment is affirmed.
/s/ William J. Boyce
Justice
Judgment rendered and Memorandum Opinion filed April 17, 2008.
Panel consists of Chief Justice Hedges, and Justices Anderson and Boyce.
Do not publish C Tex. R. App. P. 47.2(b).