Vacate and Reinstate and Opinion Filed April 20, 2015




                                          Court of Appeals
                                                          S     In The


                                   Fifth District of Texas at Dallas
                                                      No. 05-14-00618-CR

                                         THE STATE OF TEXAS, Appellant

                                                                   V.

                                         MARK TWAIN SIMPSON, Appellee

                               On Appeal from the Criminal District Court No. 4
                                            Dallas County, Texas
                                    Trial Court Cause No. F-1356596-K

                                         MEMORANDUM OPINION
                Before Justices Fillmore and Schenck1 and Chief Justice Thomas, Retired2
                               Opinion by Chief Justice Thomas (Retired)

          This State’s appeal challenges the trial court’s order granting Mark Twain Simpson a new

trial on punishment. We conclude the trial court abused its discretion in granting the motion.

Accordingly, we vacate the order and reinstate the trial court’s judgment.

                                                        BACKGROUND




     1
        Justice David Schenck succeeds Justice Michael O’Neill, a member of the original panel. Justice Schenck has reviewed the briefs and
record in this case. See TEX. R. APP. P. 41.1(a).
     2
       The Honorable Linda Thomas, Chief Justice of the Court of Appeals for the Fifth District of Texas—Dallas, Retired, sitting by
assignment.
       Simpson was charged with stealing a PlayStation and causing bodily injury to the owner,

Vidal Gilbert. The robbery was committed with two others, “Zelaya,” who pleaded guilty and

received a probated sentence, and Joseph Aguilar, who remained at large as of trial.

       Simpson waived a jury, pleaded guilty to the court, and also pleaded true to an

enhancement paragraph that alleged a 1984 aggravated robbery with a deadly weapon

conviction. He testified at the punishment hearing that, although he pleaded guilty, he did not

cause bodily injury to Gilbert as alleged in the indictment. Rather, he was “a party to th[e]

offense with [Zelaya and Aguilar].” According to Simpson, Zelaya and Aguilar went into

Gilbert’s home, took the PlayStation, and assaulted Gilbert; he drove the getaway car and

pawned the PlayStation. Asked about his criminal history, Simpson admitted he had sixteen prior

convictions for aggravated robbery and one conviction for burglary of a vehicle, all committed

in “a span of about a month” when he was a teenager. He received a twenty-five year sentence

for the robberies and a ten-year sentence for the burglary. He was paroled in 1999, but his parole

was revoked and he was imprisoned again until 2005. In 2012, he was arrested for theft of

property valued at “like $20” and forgery. He was convicted of theft and served “some county

jail time.” The forgery charge remained pending.

       Simpson’s mother testified he lived with her and her husband. She further testified she

and her husband are in poor health and dependent on Simpson for help.

       Asserting “penitentiary time” was not “merited,” Simpson’s counsel asked in closing

argument that the court “consider deferring probation.” The State responded that while this case

was “not the most egregious,” Simpson’s criminal history “sp[oke] for itself,” and Simpson

should be sentenced to prison. The trial judge, faced with a punishment range of five to ninety-

nine years or life because of the enhancement paragraph, assessed a twenty-five year sentence.

See TEX. PENAL CODE ANN. §§ 12.42(b) (West Supp. 2014) (enhancing second degree felony

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punishment to punishment for first degree felony upon showing of prior first, second, or third

degree felony conviction); 29.02(b) (West 2011) (robbery is second degree felony). The next

day, Simpson filed his motion for new trial, asserting the twenty-five year sentence violated “the

proportionality tenant of the Eighth Amendment” to the United States Constitution. Specifically,

he argued his participation in the offense was limited to driving the getaway car and “selling the

stolen property,” acts “indicat[ing] a snap misjudgment or a reaction to a particular situation.” He

further argued his sentence was disproportionate in light of his co-defendant’s probated sentence

and the probated or deferred sentences imposed on “many defendants.”

       At the hearing on Simpson’s motion, the trial judge asked whether Zelaya, the co-

defendant who received a probated sentence, had any prior convictions and what his role was in

the commission of the offense. The parties informed the judge Zelaya did not have a prior

criminal record and “was the one who actually went inside the property.” After hearing brief

argument from the State, the judge heard testimony from Simpson’s sister, who was present at

the punishment hearing but did not testify, and his mother.         These witnesses provided no

testimony concerning Simpson’s allegation of disproportionate punishment but, as explained by

Simpson’s counsel, were called because Simpson “has an issue which needs to be addressed

involving his drug usage.” Simpson’s counsel argued in closing that, in light of Simpson’s drug

usage, the trial judge should consider “a stair step process” beginning with a drug treatment

program and ending with “strict supervision” that would include a curfew. Counsel further

stated that “we have no problem” with incarceration if deemed appropriate. The State responded

that the sole issue before the court was whether the punishment hearing was “done according to

the law.” The State maintained it was and argued the motion should be denied. Asked by the

trial judge what would happen if she granted the motion, the State responded that it “would

proceed with a slow plea with a jury.” Although believing a jury trial on punishment was

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“risky,” the trial court granted Simpson’s motion, noting that “if punishment were up to [her,

she] would be inclined to put him on a long probation and if he messed up . . . send him away for

the rest of his life.”

                         STANDARD OF REVIEW AND APPLICABLE LAW

        A trial court may grant a new trial on any of the grounds specified in Texas Rule of

Appellate Procedure 21.3 or “in the interest of justice.” See TEX. R. APP. P. 21.3; State v.

Thomas, 428 S.W.3d 99, 104 (Tex. Crim. App. 2014). “Justice” means “in accordance with the

law” and upon a showing that substantial rights were affected. See Thomas, 428 S.W.3d at 105.

We review a trial court’s order granting a new trial for abuse of discretion. Id. at 103. In

conducting our review, we view the evidence in the light most favorable to the trial court’s

ruling, defer to the court’s credibility determinations, and presume all reasonable fact findings in

support of the ruling have been made. Id. at 104. We will conclude the trial judge abused his

discretion if he acted “without reference to any guiding rules or principles,” that is, if he granted

the new trial for a non-legal or legally invalid reason or based on “mere sympathy, an inarticulate

hunch, or simply because he believes that the defendant is innocent or ‘received a raw deal.’” Id.

at 103-04 (quoting State v. Herndon, 215 S.W.3d 901, 907 (Tex. Crim. App. 2007)).

Conversely, we will generally conclude the trial court did not abuse its discretion where the

defendant (1) articulated a valid legal claim in his new trial motion; (2) produced evidence or

pointed to evidence in the trial record substantiating his legal claim; and (3) showed prejudice to

his substantial rights under the standards in Texas Rule of Appellate Procedure 44.2. Herndon,

215 S.W.3d at 909. The trial court may exercise its discretion in granting a new trial without a

showing of reversible error as a matter of law but only if the defendant has demonstrated his first

trial was “seriously flawed and the flaw adversely affected his substantial right to a fair trial.”

Id.

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           An allegation of disproportionate punishment is a valid legal claim. See State v. Stewart,

282 S.W.3d 729, 738 (Tex. App.—Austin 2009, no pet.). The concept of proportionality is

embodied in the Constitution’s ban on cruel and unusual punishment and requires that

punishment be graduated and proportioned to the offense.                                         See U.S. CONST. amend. VIII;

Graham v. Florida, 560 U.S. 48, 59 (2010). It is a narrow principle that “‘does not require strict

proportionality between crime and sentence’ but rather ‘forbids only extreme sentences that are

grossly disproportionate to the crime.”” Graham, 560 U.S. at 59-60 (quoting Harmelin v.

Michigan, 501 U.S. 957, 997, 1000-1001 (1991) (Kennedy, J., concurring in part and concurring

in judgment)). In determining whether a sentence is grossly disproportionate to the crime

committed, the court must judge the punishment in light of the harm caused or threatened to the

victim, the culpability of the offender, and the offender’s prior adjudicated and unadjudicated

offenses. See id. at 60; Culton v. State, 95 S.W.3d 401, 403 (Tex. App.—Houston [1st Dist.]

2002, pet. ref’d). In the “rare” case when this comparison leads to an inference of gross

disproportionality, the sentence is then judged in light of sentences imposed upon other criminals

in the same jurisdiction and sentences imposed for the commission of the same crime in other

jurisdictions. Graham, 560 U.S. at 60. Generally, punishment assessed within the statutory

limits, including punishment enhanced pursuant to a habitual offender statute, is not excessive,

cruel, or unusual. See Ex parte Chavez, 213 S.W.3d 320, 323-24 (Tex. Crim. App. 2006).

                                                             DISCUSSION

           In two issues, the State asserts the court erred in granting Simpson’s motion because the

sentence was not grossly disproportionate to the offense committed and the punishment trial was

conducted in accordance with the law.3 We agree.


     3
       In his response brief, Simpson “agrees that aside from his disproportionate sentence, the brief proceedings (the hearings on his guilty plea
and sentencing) were otherwise conducted in accordance with the law.”



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       Because Simpson’s claim of disproportionate punishment is a valid legal claim, we turn

to whether the evidence substantiated his claim. See Herndon, 215 S.W.3d at 909; Stewart, 282

S.W.3d at 738. Viewed in the light most favorable to the trial court’s ruling, the record reflects

Simpson was one of three individuals who participated in a robbery. Although the victim was

injured, he was injured by one of Simpson’s co-defendants, not Simpson. The record further

reflects Simpson had seventeen prior felony convictions for offenses committed thirty years

earlier, a conviction for theft of property valued at “like $20,” and a pending forgery charge.

Measuring this evidence against Simpson’s twenty-five year sentence, we cannot conclude this is

one of the “rare” cases where gross disproportionality is inferred. See Graham, 560 U.S. at 60.

While Simpson might not have injured the victim, he pawned the PlayStation knowing it was

stolen and drove the getaway car. Additionally, while the seventeen prior felony convictions are

“dated,” sixteen of those convictions are for aggravated robbery—a crime of violence as a matter

of law—and all were committed within a span “of about a month.” See Jernigan v. State, 672

S.W.2d 280, 281 (Tex. App.-–Dallas 1984, no pet.) (“Violence is an inherent element of

aggravated robbery.”); see also TEX. PENAL CODE ANN. § 29.03 (West 2011). The theft and

forgery offenses, though non-violent crimes, were committed within the same year and shortly

before Simpson was arrested in this case. In light of Simpson’s role in the robbery and his

significant prior adjudicated and unadjudicated offenses, his twenty-five year sentence is not

grossly disproportionate to the crime.     See Ewing v. California, 538 U.S. 11, 30 (2003)

(concluding twenty-five years to life sentence for felony grand theft under California’s three

strikes law not grossly disproportionate). Although Simpson did not need to show reversible

error as a matter of law, nothing reflects the first punishment trial was “seriously flawed.” In

fact, under the habitual offender punishment statute, Simpson’s sentence fell well within the

statutory range of five to ninety-nine years or life. See TEX. PENAL CODE ANN. §§ 12.32(a)

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(West 2011), 12.42(b).    On the record before us, we conclude the evidence from the new trial

hearing does not substantiate Simpson’s claim. Accordingly, we need not judge his sentence in

light of sentences imposed on others. See Graham, 560 U.S. at 60.

       Because the evidence does not substantiate Simpson’s claim, the trial court abused its

discretion in granting Simpson’s motion. We sustain the State’s issues, vacate the trial court’s

order granting a new trial, and reinstate the judgment.




Do Not Publish
TEX. R. APP. P. 47
                                                     /Linda Thomas/
140618F.U05                                          LINDA THOMAS
                                                     CHIEF JUSTICE, RETIRED, ASSIGNED




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                                       S
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                      JUDGMENT

THE STATE OF TEXAS, Appellant                      On Appeal from the Criminal District Court
                                                   No. 4, Dallas County, Texas
No. 05-14-00618-CR        V.                       Trial Court Cause No. F-1356596-K.
                                                   Opinion delivered by Chief Justice Thomas,
MARK TWAIN SIMPSON, Appellee                       Ret.; Justices Fillmore and Schenck
                                                   participating.

       Based on the Court’s opinion of this date, we VACATE the trial court’s order granting a
new trial and REINSTATE the judgment.


Judgment entered April 20, 2015.




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