COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-12-00492-CR
NO. 02-12-00493-CR
NO. 02-12-00494-CR
NO. 02-12-00495-CR
NO. 02-12-00496-CR
NO. 02-12-00497-CR
NO. 02-12-00498-CR
NO. 02-12-00499-CR
TYLER NAMON PAYNE APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM THE 396TH DISTRICT COURT OF TARRANT COUNTY
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MEMORANDUM OPINION 1
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Appellant Tyler Namon Payne pled guilty without a plea-bargain
agreement to attempted burglary of a habitation, burglary of a habitation, and six
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See Tex. R. App. P. 47.4.
counts of aggravated robbery with a deadly weapon. He now appeals the
sentences the trial court imposed. We affirm.
After the trial court accepted Appellant’s pleas, it ordered a presentence
investigation (“PSI”) and adjourned until the PSI was completed. After the PSI
was completed and the trial court had reviewed it, the trial court conducted an
evidentiary hearing with witnesses on the issue of punishment. At the
conclusion of the hearing, the trial court assessed Appellant’s punishment as
follows: for attempted burglary, ten years’ confinement; for burglary, twenty
years’ confinement; and for six counts of aggravated robbery with a deadly
weapon, twenty-five years’ confinement each. After advising Appellant of his
decision on punishment, the judge asked Appellant if there was any legal reason
why the sentences should not be pronounced. Appellant’s counsel replied, “No
legal reason.” The trial court imposed the sentences and ordered them to run
concurrently. Appellant did not file a motion for new trial. See Tex. R. App. P.
21.4.
In his sole point on appeal, Appellant now contends that his sentences are
grossly disproportionate to the offenses he admittedly committed in light of
information contained in the PSI showing that he suffered from mental retardation
and bipolar disorder, abused drugs, exercised poor judgment and impulse
control, and testimony from a mental health professional that Appellant was
“ʻmarginally capable of meeting the terms and conditions of probation.’”
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In general, to preserve 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 that states the specific grounds for the desired ruling. Tex.
R. App. P. 33.1(a)(1); Laboriel-Guity v. State, 336 S.W.3d 754, 756 (Tex. App.—
Fort Worth 2011, pet ref’d) (citing Layton v. State, 280 S.W.3d 235, 238–39 (Tex.
Crim. App. 2009)). This case is no exception. See Kim v. State, 283 S.W.3d 473,
475 (Tex. App.—Fort Worth 2009, pet. ref’d); see also Rhoades v. State, 934
S.W.2d 113, 120 (Tex. Crim. App. 1996). “It is axiomatic that errors that are
asserted on the part of the trial court must generally be brought to the trial court’s
attention in order to afford the trial court an opportunity to correct the error, if
any.” Kim, 283 S.W.3d at 475. In Kim, this court held that the appellant failed to
preserve his complaint about the alleged disproportionality of his seven-year
sentence for burglary because he did not raise it at the time the sentence was
imposed or in a motion for a new trial. Id. Likewise, here, despite the opportunity
before the sentences were imposed to tell the trial court why they should not be,
Appellant did not object that the punishments were grossly disproportionate to
the offenses, did not raise any such complaint in a motion for a new trial, nor has
he complained that he did not have an opportunity to raise such a complaint in
the trial court. See Hardeman v. State, 1 S.W.3d 689, 690 (Tex. Crim. App.
1999). Accordingly, Appellant has forfeited his claim for review. See Means v.
State, 347 S.W.3d 873, 874 (Tex. App.––Fort Worth 2011, no pet.); Kim, 283
S.W.3d at 475–76.
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And even if Appellant had preserved his complaint, his sentences are
within the legislatively prescribed limits and not otherwise disproportional to his
offenses. As a general matter, the fixing of prison terms for specific crimes is
“ʻproperly within the province of legislatures, not courts.’” Harmelin v. Michigan,
501 U.S. 957, 998, 111 S. Ct. 2680, 2703 (1991) (quoting Rummel v. Estelle, 445
U.S. 263, 275–76, 100 S. Ct. 1133, 1140 (1980)). “Determinations about the
nature and purposes of punishment for criminal acts implicate difficult and
enduring questions respecting the sanctity of the individual, the nature of law,
and the relation between law and the social order.” Id. Accordingly, a sentence
that falls within the legislatively determined range of punishment is generally not
grossly disproportionate. See Means, 347 S.W.3d at 875; Kim, 283 S.W.3d at
475–76 (“Subject only to a very limited, ‘exceedingly rare,’ and somewhat
amorphous Eighth Amendment gross-disproportionality review, a punishment
that falls within the legislatively prescribed range, and that is based upon the
sentencer’s informed normative judgment, is unassailable on appeal.”) (quoting
Ex parte Chavez, 213 S.W.3d 320, 323–24 (Tex. Crim. App. 2006)). Although
Appellant received the maximum sentences of twenty years’ and ten years’
confinement for burglary––a second-degree felony––and attempted burglary––a
third degree felony, respectively, for the six first-degree felonies––each
punishable for up to ninety-nine years––he received twenty-five years each. Tex.
Penal Code Ann. §§ 12.32, 12.33, 12.34 (West 2011). Thus, Appellant’s
punishment is well within the legislatively prescribed limits, and our review of the
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record does not persuade us that these sentences are otherwise grossly
disproportional to the gravity of the offenses Appellant committed. See Moore v.
State, 54 S.W.3d 529, 541–42 (Tex. App.—Fort Worth 2001, pet. ref’d).
Accordingly, we overrule Appellant’s sole point.
Having overruled Appellant’s sole point on appeal, we affirm the trial
court’s judgments.
ANNE GARDNER
JUSTICE
PANEL: DAUPHINOT, GARDNER, and WALKER, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: August 8, 2013
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